COMPLETE SUMMARY OF BLOCK 1,3,4 AND 5: LITERATURE + LECTURE NOTES
This is a complete summary for the course ''conflict of laws'' given in the third year of Global Law. The summary contains both lecture notes and all literature! These include chapters of the book, but also various summaries of ar...
Conflict of Laws – EXAM SUMMARY
Lecture 1 – 31.01
Lecture Notes
Practical based assessment
50% exam
50%: mock trial: act out a trial, 2 different cases will be published. One on maintenance and divorce and
one on child abduction. You act out the court seat. Split into groups. Statements are written in groups of
two.
- Open book exam
- Probably a take home exam
Deadlines
- Week 5: cases will be posted
- Week 9: statement of claim submitted
- Week 10: statement of defence submitted
- Tba: maintenance case mock trial
- Tba abduction case mock trial
A deadline is a deadline.
Buy book
Introduction
PIL:
- Private law: cases between private parties
- International cases
- Law
Private law matter:
- Divorce
- Inheritance
- Contracts
International does not refer to the sources, it refers to the fact. Flying with Ryanair signing a contract,
part of PIL, because you agree that when you want to sue Ryanair, you sue them in Geneva, and law of
Switzerland applies.
Examples:
Example I Feyenoord player go to Rome. Make damage shop owners in Italy they want money. That is
the first thing what they think. They want compensation. How can they get it? Where are they going to
get it from? People that make the damages. But the shop owners are in Italy and the football supporters
are in the Netherlands. Where are they going to get to court question of private international law.
Dutch jurisdiction or Italian jurisdiction? Question of jurisdiction
Example II: Buy a Peugeot but the Peugeot is cheaper in France than it is here. Buy your car in France
and then you bring it back to the NL. But car starts to display problems. You bring up shop owner, but
now there are problems, I want to bring it back. Does not matter where you can sue, what law applies to
solving the case? Apply the law of other countries. Question of applicable law
1
,Example III: Go to England and work there for 9 months. Why is the German branch sending you to
England? Dismissal law in England is much easier in England than in Germany. Imagine, you decide to
sue in England. England says, yes this was an unfair dismissal. Judicial decision, but what is the problem?
Where are you getting that money from? No assets in England, no money in England. Can you enforce
this English decision in Germany? Recognition and enforcement of judgments
Main subjects
- Jurisdiction/competence of the court
- Applicable law/choice of law
- Recognition and enforcement
- Administrative co-operation
- Procedural law
Service
Evidence
Terminology
Jurisdiction: ‘forum’: court
- Forum delicti: the court where the tortious event took place
- Forum rei sitae: court of the place where the object is located
- Choice of court clause
Applicable law: ‘lex’
- Lex loci delicti: law of the place where the tortious event took place
- Lex rei sitae: law of the place where the property is located
- Choice of law clause
Four different questions: in this course, only dealing with the first three. Blue, we do not deal with.
- Jurisdiction
- Applicable law
- Recognition and enforcement
International does not refer to the sources.
PIL is national law
Compare rules of NL with those of Belgium etc.
Related subjects
PIL is related to many other different fields.
- Nationality law
- Uniform private law
- Public IL
- Immigration law
- Comparative law
- Interregional law
Sources
1. EU instruments (mostly regulations)
2. International instruments (mostly conventions)
2
, 3. National sources
Statutes
Unwritten law
Principles and custom (restatement)
Test which source applies.
International instruments do not apply in every source of case.
Scope of instruments
- Material/substantive scope: scope in subject
- Formal/geographical scope: scope in space
- Temporal scope: scope in time
But in the case of multiple instruments
If multiple international instruments are applicable, then ap problem of concurrence occurs
- International vs. national
- Convention v. regulation
- Convention v. convention
Methodology
Not every case deal with all the questions.
1. International facts
2. Characterization
3. PIL question
From point 4, you can score points on your exam
4. Sources
5. Scope
6. Concurrence
7. Application
Points from question 4 on.
Choice of law process
Connecting factor + choice of law category = consequence
- Determination of relevant connecting factors: examples?
- Choice of law category: problems? Characterization
Some of the problems when applying foreign law:
- Content of foreign law
- Incidental question
- Renvoi: legal doctrine which applies when a court is faced with a conflict of law and must
consider the law of another state. Process by which the court adopts the rules of a foreign
jurisdiction with respect to any conflict of law that arises. It prevents forum shopping and the
same law is applied to achieve the same outcome regardless of where the case is actually dealt
with.
- Public policy
Quiz
Territorial jurisdiction: can you go to court in Rotterdam or Groningen, so within the country, so it is not
international jurisdiction.
3
, Tort cases: nationality is irrelevant.
Reading
Chapter 1 – Introduction
Why does not full harmonization exist in the field of conflict of laws? differences in substantive law,
differences in legal techniques and differences in civil codes. Also, principle of subsidiarity: EU regulates
only in matters where the objectives of the proposed action cannot be satisfactorily achieved by MS on
the national level, but better by the EU.
In the fields where harmonization exists, it is quite limited: and rules shall be complied with whenever
situation has a sufficiently close connection with the EU as a whole, irrespective of whether pursuant to
the usual conflict rules the matter is governed by the law of the MS or not.
Do we need to know all the single developments?
MS no longer have the right to make agreements with third countries which affect those rules or alter
their scope.
Third pillar of Maastricht treaty allowed for more comprehensive EU Conventions in the field of PIL.
Treaty of Amsterdam moved ‘’judicial cooperation in civil matters’’ from the European integration’s
third pillar to the first pillar. Art 65 ‘’civil matters having cross-border implications’’, only in course of
internal market, but very broad interpretation. This became art 81: internal market link abolished,
chapter of its own.
Secondary instruments adopted on basis of art 65 or 81 of TFEU. 3(2) TFEU today ensures that MS can
no longer undertake new obligations under the above-mentioned Hague Conventions and thus that EU
has competence.
Sources:
- TFEU and TEU: direct applicable provisions
- Regulations and directives
Both subject to authoritative interpretation by the ECJ. Mostly preliminary rulings on the basis of
art 267 TFEU = duty to turn to ECJ of highest national court.
In case of incompatibility between EU law and MS’s PIL, EU law prevails! + EU is autonomous legal
system; not reliant or dependent on MS’s terms etc.
- Conventions to which EU is party
Hague Conventions
Lugano Convention
Bilateral agreements
EU Instruments; more efficient as they do not require a certain minimum number of ratifications +
directly applicable
- Brussels I Regulation
Converted 1968 Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil
and Commercial matters + 1980 Rome Convention on Applicable contractual Regulations +
Rome I Regulation
Chapter 2 – The Direct Impact of the TFEU on the PIL of MS
EU Citizenship
EU is prohibited to discriminate (art 18 + art 45(2)); both directly + indirectly
- Boukhalfa v Deutschland
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