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  2.  
  3. Katholieke Universiteit Leuven (KU Leuven)
  4.  
  5. Rechten
  6.  
  7. Private International Law (C00J2A)

Summary

PIL Summary

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  • Course
  • Private International Law (C00J2A)
  • Institution
  • Katholieke Universiteit Leuven (KU Leuven)

This is a summary of the Private International Law (PIL) course taught by Prof. Van Calster. The summary is based on the handbook. This is a summary of the course Private International Law (PIL), given by Prof. Van Calster. The summary is based on the course book.

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Document information

  • May 20, 2024
  • 114
  • 2023/2024
  • Summary

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  • summary

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  • Katholieke Universiteit Leuven (KU Leuven)
  • Rechten
  • Private International Law (C00J2A)
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Deel 1 – Introduction
1.1 The concept, nature and development of Private International Law
 PIL = increasingly relevant part of practice in a globalized world
 Terminology employed to denote the subject matter of this volume varies
o Most commonly
 Conflict of laws
 PIL
o Very often PIL involves calm determination rather than struggle + legal certainty takes
precedence over suitability
o PIL would suggest a more neutral view on the int. conflicts
 3 processes in PIL: each has led to varying degrees of convergence of harmonization
o Jurisdiction
o Applicable
o Recognition and enforcement of foreign judgements
 Classic narrow view of PIL equates with conflict of laws proper
 The boarder approach includes jurisdiction and enforcement
 In all 3 areas of PIL, there has been increasing int. convergence or even harmonization
o PIL neither seeks nor requires regulatory convergence
 “International” refers to factual matric (= int. component)
 DOESN’T refer to nature of source of law: PIL remains nat. law
o No inherent requirement for int. convergence or harmonization of PIL exercise
 Even when EU and int. law led to convergence and harmonization, PIL  public IL
 In 2 main aspects
 Regulate relationships between private parties, not states
 Functions primarily at the domestic level, in domestic courts
 There is limited overlap
o Courts should not question validity of acts taken by a foreign government
 Within that government’s territory
 In government seizure of property
 In relationship between human rights law and conflict of laws
 In refugee/ migration law and conflict of laws
o More difficult to separate “private” nature of PIL and “public” nature of public IL
o Many of these discussions concern principle of universality or universal jurisdiction
o Criminal law does NOT engage PIL

1.2 Sources of Private International Law
 Hague Conference = important source of PIL
o Active in 3 areas:
 Protection of children, family and property relations
 Int. legal cooperation and litigation
 Int. commerce and financial law
o Works with conventions => unequal ratification practice

1.3 The Three Processes of Private International Law, and Standard “connecting
factors”
 PIL involves determination of jurisdiction (forum), applicable law (lex causae)
 Focus in academic development was on applicable law
 Von Savigny re-emphasised the relevance of jurisdiction
o Is relevant for a variety of reasons

1.3.1 Procedural Issues
 Choice of law never applies to these issues:
o They always depend on law of the country where proceedings are successfully brought: Lex
fori

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, o What is and what is not part of “procedure” in itself may be subject of discussion
 E.g. of procedural issues: recovery of cost and possibility of legal aid

1.3.2 Application of the law
 Even when applicable law has been determined, not all judges will apply it in the same way
o Differences in competence and know-how of the bench play a role here, too
o Gleichlauf = circumstance in which court with jurisdiction applies “its own” laws to dispute,
may often seem attractive
o Bias, incompetence and corruption = strong reason wo wish to end up in one court or another
 Von Savigny’s advocates a “blindfold” approach to PIL
o = identify applicable law without taking account of contents of that law or of any other
o Focus is on the Sitz or “seat” of a relationship in law
o HOWEEVER, there are plenty of opportunities for the court seised
o BUT his working method continues to determine PIL process especially in choice of law state
o Determination of applicable involves 3 steps (see below)

1.3.2.1 Characterisation (French: qualification) of the legal question
 = step 1
 Requires the facts to be accommodated within one legal categories to which a choice of law rule may
be applied
 = crucial step
 Determines in large degree the applicable law outcome
 Trick to help remember: judge needs to put the facts in a particular pigeon hole (like in mailroom)
which in turn will lead to parcel being delivered on one or other doorstep

1.3.2.2 Connecting factor
 = step 2
 = which legal system connects most closely with this category of legal question

1.3.2.3 Lex Causae
 = step 3
 One applies substantive law of legal system identified by step 2
 Standard connecting factors may be divided into 2 categories:
o Personal
o Causal

1.4 Characterisation, Renvoi and the “Incidental” issue or Vorfrage
 Legal categories essentially are branches of private law
 Characterization = direct result of von Savigny’s influence
o One employs obj. approach in search of the Sitz of facts
o NOT without faults: pays no regard to whether rule of law chosen to apply in case was
intended to be applied to facts
o NOT without correction: EU PIL allows for correction of obj. “Sitz” to have law apply with
“closest and most real” connection to case
 NOT all nat. PIL uses same categories, = reason for harmonization attempts by EU
 Parties will try an convince judge that their characterization is correct one
o Using reverse engineering their approach to characterisation to fit the applicable law they
preferred
o E.g. Rokkan v Rokkan
 Subcategory of characterisation = incidental issue or Vorfrage
o Nat. law determined which applicable laws is connected to a given legal category
o BUT before one may apply it, one needs to decide on actual existence of category in facts at
issue
o E.g. cases:
 Ogden v. Ogden


2

,  About validation of marriage between English and French national without
parental consent
 Court of Appeal UK (applying UK law) sees it as matter of formal validity if
marriage (lex locus celebrations)
 => consent is not relevant => marriage is valid
 IF it was considered part of one’s capacity to marry (Frensh law would be
applied) => marriage = invalid
 Schwebel v. Ungar
 Jewish husband and wife married and domiciled in Hungary
 => relocating to Israel => stay in IT where husband divorces wife by “get”
o Not recognized by IT not Hun.
o Israel does recognized “get”
 Wife moves to Canada + remaries
 => Canadian courts:
o Lex domicilii (Israel law) about the capacity of the wife to remarry
o About validity of divorce either:
 Lex domicilii at relevant time (Hun.)
 Lex loci actus (IT)
o European Regulations have harmonized the approach to the Vorfrage in contract law and in
torts
 Renvoi relates to question whether a reference, by application of conflict of laws rules
o 2 types of renvoi:
 Renvoi = remission, referral to the lex fori
 Renvoi au second degré = transmission
o Foreign law should only be applied where it is interested in being applied
o Also plays a role in precenting forum shopping
o Eu treaties and nat. laws exclude renvoi: EU law does as a more or less general rule

1.5 Forum shopping and forum non conveniens
 Is of high importance even to unsophisticated litigant
o = technique whereby a litigant selects his forum to sue, on the basis of suitability (see above)
o By no means a neg. or suspect phenomenon
o Only takes an abusive nature in those instances where a litigant selects a forum purely on the
basis of “qualities” of the forum which do not serve the rule of law
 Nat. court may decline to exercise jurisdiction on the ground that a court in another State would be
more appropriate forum for the trial of the action
 Sometimes used in a different sense, referring to choice of law
o Most often used because the other law offers legal instruments which other does not possess
 Often looked at more favourably in common law than in civil law

1.6 The impact of European law on the private international law of the member
states
1.6.1 Legal basis
 Has evolved:
o Art. 220 EEC
 MS shall enter into negotiations with each other with a view to securing for benefit
of their nationals
o Maastricht treaty
 Art. K.1.
o Treaty of Amsterdam
 Art. 68 EC’s provision disappeared with the entry into force of the Lisbon Treaty
o TFEU
 Council may adopt a decision determining those aspects of family law with cross-
boarder implications which may be subject of acts adopted by ordinary legislative
procedure

3

, 1.6.2 The development of European private international law policy
 EU policy on PIL has changed quite dramatically
 In past, finely tunes legal basis in successive EU treaties has required some creativity from the
European Commission
 Predictability of forum = cornerstone of jurisdictional regime of EU
o BUT # instances in jurisdictional regulations
o => leads to multitude of for a
 EU “conflicts resolution” lies in an ever expanding harmonization of rules on all 3 steps of PIL
o Further harmonization of substantive EU law may be next logical step in European conflicts
resolution
o Very existence of debate especially on applicable law shows, MS have a different approach to
wide variety of issues in private law
 In 2014, a review of the Stockholm programme was launched
o Stocktaking and slowing the legislative pace were not mentioned
o The pace and depth of this harmonization process is such as to have triggered calls for
codification of European PIL

1.7 Brexit
1.7.1 The position of the United Kingdom vis-à-vis EU private international law prior
to Brexit
 Brexit has caused headaches for many practitioners and observers of int. and EU law
 History:
o UK joined EU on 1 jan. 1973 and the Brussels Convention (1968) in 1978
o In institutional arrangements on further harmonization of EU PIL the UK secured a flexible
“opt-in”
 = not bound by further EU PIL instruments unless it notified (via letter) that it it
wishes to be subjected to the EU law
 => the Uk was bound of its own volition by successors to Brussels Convention
 PIL instruments were seen as part and parcel of “area of freedom, security and justice”

1.7.2 The EU – UK withdrawal agreement and private international law
 Agreements on withdrawal (WA) deals with judicial cooperation and commercial matters in art. 66-69
o WA extended temporal scope of application of European PIL rules
o => WA extended application of jurisdictional rules of main Brussels Ia Regulation to legal
proceedings “instituted before the end of the transition period”
 Brussels Ia contuse to apply to
o Judgements given in legal proceedings instituted before end of transition period
o New claims added to proceedings commenced prior to 31 dec. 2020 and claims against new
defendants joined to such proceedings after that date
 The European Enforcement Order Regulation also continues to apply
 The thinking was to make the pending proceedings fully subject to existing (EU) law and case law as it
existed prior to Brexit day
 Art. 66 WA:
o Rome I Regulation shall apply in respect of contracts concluded before the end of transition
period
o Rome II Regulation shall apply in respect of events fiving rise to damage

1.7.3 The situation post transition period
 Trade and Cooperation Agreement (TCA) delivered a hard Brexit on judicial cooperation
 Brussels Ia’s protective rules for consumers and employees have effectively been kept by the UK
 UK sought membership of Lugano Convention
o Secured support from Norway, Iceland and Switzerland
o BUT, since UK was NOT looking to become member of EFTA approval needs to be sought from
all members of Lugano

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