Lecturer: Miljen Matijašević Session 2

Unit 28

also known as ◦ private international law ◦ transnational civil litigation  private law which deals with foreign relations  a set of rules of national law determining how civil cases containing a foreign element are to be resolved  civil litigation with an aspect not local to a single country

 may arise in any area of private law; ◦ family law, contracts, torts, property, intellectual property, succession, company law, etc.  e.g. divorce between nationals of different countries, foreign nationals ordering goods or purchasing property, traffic accidents in foreign countries, etc.

 not necessarily ‘international’  may involve jurisdictions of two countries, but also of two states, provinces, cantons, etc.

CONFLICT OF LAWS  term first used by Ulrich Huber ( ), a Dutch professor of law and political philosopher; PRIVATE INTERNATIONAL LAW  term first used by Joseph Story ( ), an American lawyer, jurist and Supreme Court justice, in 1834;

CONFLICT OF LAWS  term adopted by common law countries  more suitable because most common law countries contain several jurisdictions (US states, UK countries, etc.) PRIVATE INTERNATIONAL LAW  although first used by an American, the term preferred in civil law countries;

MAIN CONCERNS OF THE CONFLICT OF LAWS:  choice of forum (jurisdiction)  enforcement of foreign judgments  characterisation of the cause of action  choice of law

CHOICE OF FORUM (JURISDICTION)  these rules determine whether the forum court (the court to which the claimant has applied) is competent and appropriate to resolve the dispute Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters  EU: the matter of competence regulated in the Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters Conflict of laws

CHOICE OF FORUM (JURISDICTION)  there has to be a connection between the litigation and the forum ◦ property located within the forum ◦ the defendant has a personal connection with the forum ◦ the activities related to the litigation occurred within the forum (tortious act, breach of contract, etc.) Conflict of laws

CHOICE OF FORUM (JURISDICTION)  in common law countries, a competent court may decline jurisdiction at its own discretion if it believes that another court is more appropriate  in the EU this can only be done if proceedings have already been initiated in another forum Conflict of laws

ENFORCEMENT OF FOREIGN JUDGMENTS  rules determining the effect given to foreign judgments  a party may have obtained a ruling in a foreign court and might have to attempt to enforce it in the forum court  this will depend on whether the forum recognizes the judgments of the foreign court Conflict of laws

ENFORCEMENT OF FOREIGN JUDGMENTS  within the EU – this is regulated by the Regulation  if a judgment was reached under the competence in accordance with the Regulation, it can be enforced in the forum court within the EU  these matters often regulated by bilateral agreements between countries Conflict of laws

ENFORCEMENT OF FOREIGN JUDGMENTS  international commercial disputes Convention on the Recognition and Enforcement of Foreign Arbitral Awards  Convention on the Recognition and Enforcement of Foreign Arbitral Awards - the "New York" Convention Conflict of laws

CHARACTERISATION OF THE CAUSE OF ACTION  the case is analysed and each aspect of the pleading is assigned to an appropriate judicial category  these include – procedure, status, tort, contract, divorce, etc.  e.g. in some countries, the forum court is bound by law to apply the national procedural law, while it may apply foreign substantive law Conflict of laws

CHOICE OF LAW  choice of GOVERNING law (mjerodavno pravo)  depending on the aspect, either the national law or the foreign law will apply in the characterisation of each aspect of the claim  e.g. the characterisation of title to property will depend on the lex situs – the law of the jurisdiction in which the property is situated Conflict of laws

CHOICE OF LAW  lex fori – the law of the forum, normally applied in terms of procedure  lex causae – substantive law applied to the case in hand (local or foreign) Conflict of laws

CHOICE OF LAW  e.g. person X, national of country A, dies and leaves behind a will in which he bequeathes the title to property located in country B to person Y, domiciled in country C ◦ lex situs – law of country B, location of the property ◦ lex loci actus – law of country A, where the will was made ◦ lex loci domicilii – law of country C, of which the heir is a national Conflict of laws

CHOICE OF LAW  e.g. person X has an employment contract with person Y, concluded in country A  a breach of contract occurs in country B ◦ lex loci contractus – law of country A, where the contract was concluded ◦ lex loci delicti – law of country B, where the breach occurred Conflict of laws

CHOICE OF LAW  the choice will be a matter of interpretation  the prevailing law will be the one with the largest number of connecting factors to the case Conflict of laws

CHOICE OF LAW  in the EU, as regards contract law ◦ Convention on the law applicable to contractual obligations (the Rome Convention), 1980  provides that the contracting parties may specify in the contract the applicable law Conflict of laws

For example, suppose that a woman domiciled in Scotland and a person habitually resident in France, both being of the Islamic faith, go through an Islamic form of marriage in Egypt while on holiday. This ceremony is not registered with the Egyptian authorities. They establish a matrimonial home in Algeria where they buy a house in the husband's name. The relationship breaks down and the wife returns to Scotland. When she hears that the husband is proposing to sell the house, she goes to the courts in Scotland.

Is this:  a case involving title to land where the lex situs, the law of the place where the land is situated, will be applied;  a case to decide whether the Egyptian ceremony created a valid marriage under the lex loci celebrationis, the law of the place where the marriage was celebrated;  a case to decide whether she has the status of a wife and so may seek matrimonial relief under the lex domicilii, the law of her domicile; or  a case to seek divorce in which case the lex fori substantive family law will apply? Assuming that the three relevant laws (the domicile and the forum is in Scotland) would give different results, the choice of the lex causae assumes major significance.

In international trade, disputes often arise involving two or more countries. Of course, such disputes do not necessarily pertain to ordinary commercial contracts. Let us think of tourists involved in a traffic accident abroad, or long- running disputes concerning child custody or the distribution of property between a husband and wife of different nationalities. For this reason, every country has a branch of law, referred to as the Conflict of laws in England, aimed at resolving the following important issues: the courts of which of the two or more countries have competence in the event of a dispute, and which law should apply in the resolution of the dispute. The parties may agree for any disputes to be resolved in a country not involved in the dispute.