EU Private Law Practice Question Guide With Correct Detailed Answers.

It shall apply in civil and commercial matters whatever the nature of the court or tribunal, does not apply to arbitration - correct answer What is the scope of the 2012 regulation? Usually a permanent body which acts according to the law, its decisions are binding and they are subject to autonomy, independence and impartiality - correct answer What are the main characteristics of a court or tribunal? Economic relations, relating to free movement of goods, free circulation of services and capital movements in the EU etc. - correct answer What does the regulation say is the meaning of civil and commercial matters according to article 1? Classification or characterization i.e. what is the juridical nature of the conflict - correct answer Where there is a conflict of law and the applicable law must be established, what is the first step? They must determine whether the national or the foreign law is to be applied - correct answer After establishing the area of law concerned in a conflict what is the next step for a national court? It is a link between an event, thing or person to a country classified by the nature of the connecting factor - correct answer What is meant by the connecting factor? Involves finding the law which is most closely related to the transaction or legal relationship involved - correct answer Most common law countries adopt the 'proper law' approach where there is legal conflict, what is this? civil jurisdictions use precise legal concepts which give the benefit of certainty but may not deliver the fairest results whilst common law jurisdictions use the closest connected law which appears fairer - correct answer Civil vs common law approach of finding the applicable law The governing law will be applied using the applicable connecting factor and where the foreign law is to be applied the court will then take into account any conflicts between the relevant private and public law - correct answer After classifying the factual aspect of the conflict what is the next step? Forgo case (1882) - correct answer Which case established the Renvoi rule? A Bavarian national had lived since the age of 5 in France and after his death his relatives claimed the inheritance, according to French law the estate was to be governed by the national law of the deceased which would be the Bavarian law, according to Bavarian conflict law rules the estate was to be governed by the law of the deceased's domicile which was France, so the French law applied and the French state absorbed the inheritance - correct answer What happened in the Forgo case? When the foreign conflict rules refer the case back to its starting point (lex fori) this is called remission and when the foreign conflict rules refer the case to a third country the process is called transmission - correct answer Explain the two forms of the Renvoi 1. Rejection - in many places the renvoi is not accepted, 2. Partial Renvoi - some legal system will only apply third country law through transmission if the country accepts their law to be applied & 3. Total Renvoi - applying the foreign law just as the foreign court would - correct answer Explain the three approaches to the Renvoi The court applying the foreign law must consider the substantial law of the foreign country as well as their private international law approach including how they approach the Renvoi - correct answer What makes total application of the Renvoi a complicated process? Public and criminal foreign law, foreign law contrary to public policy or overriding mandatory rules of the domestic country - correct answer In which circumstances can the foreign law be excluded? Usually the court applies only the foreign private but If there is a criminal provision affecting the case, the court can exclude the criminal law or it can apply it regardless as the court cannot directly hold responsible the criminal wrong - correct answer What happens if there is an aspect or foreign public law in a conflict case? Public policy is not a definable concept, there must be a balance of when it is right to accept the values of other foreign jurisdictions or when you must protect your own - correct answer How can the exclusion of foreign law on the basis of public policy be a tricky area? By requiring that there is a close connection between the action complained of and the place in which the case is heard so that he can foresee where he can be sued in nations other than his country of domicile - correct answer The Brussels I regulation carries the aim of improving legal certainty, how does it aim to do this? Contractual matters, rationale is based on a strict connection presumed to exist between the contractual action and the court in the place of performance of such contract - correct answer What classification of claims are governed by Art. 7(1) of the Brussels I regulation? An 'obligation freely assumed by one party towards another', there must be a contractual obligation or a dispute over the existence of a contract and the negative action to exclude a contract will not be performed by the court in this capacity - correct answer What is the meaning of 'contractual matters' in relation to art.7(1) of the Brussels I regulation? art.5.1(B) - correct answer Contracts which concern the sale of goods are excluded from art.7(1), which article deals with these kinds of conflicts? article 7(3) - correct answer Which article applies to torts? The place where the damage occurred, autonomous European interpretation which means it can be either the place of the event which led to the damages or could be the actual place where the damage occurred - correct answer What is the connecting factor in a dispute which involves a tort? the country most closely connected with the event giving rise to the damages - correct answer How is the place of action established? The court of the domicile of one of the defendant, if there is identical cause of action or simply to avoid conflicting judgements where the actions are related - correct answer Where there are multiple defendants where will the case be held? TMCS, a French company, purchased two metal polishing machines which had suction systems attached, the suction systems were manufactured by Handte Germany but sold and installed by Handte France, when it became apparent that the suction systems were defective TMCS, as a sub-buyer, sued the German manufacturer in a French court. Even though this was seen to be contractual under French law, the German aspect meant the Brussels I had to be applied and so Article 5(1) could not apply in France as there was no contractual relationship between TMCS and the manufacturer. - correct answer What were the fact of Handte v TMCS (1992)? whether the article which provides for special jurisdiction of matters relating to contract could apply to an action between a sub-buyer and the manufacturer who was not the seller as the goods were unsuitable for purpose, it was found it could not - correct answer What was the issue surrounding article 5(1) in the Handte case? A German company brought an action, in a German court, against an Italian company for annulment of a contract as a result of the defective quality of goods delivered under it, the defendant challenged the jurisdiction of the court claiming that in an action for indemnification of goods the jurisdiction should be established according to the place of delivery, I.e. Italy. However, German law meant that the connecting factor was the place where the goods are situated - correct answer What happened in Tessili v Dunlop? The court decided not to provide a uniform interpretation but to leave it to the court where the case is first brought to use its own substantive rules of the applicable law - correct answer What did the ECJ find in Tessili? the process of shopping round the world's courts until one finds a court where a successful outcome is most likely - correct answer What is forum shopping? harmonising domestic choice of law rules by means of international conventions and with regional bodies such as the EU there is a common standard of law in each state - correct answer What attempts have been made to achieve uniformity and therefore reduce forum shopping?