1. Introduction to Polish Private International Law 3rd Classes
Dr. Mateusz Pilich Chair of Int’l Private and Trade Law, University of Warsaw

2. Structure of the Conflict Law Rules (A Supplement)

3. Law applicable vs Lex… Law applicable: Lex:
national law which governs a given relationship, it applies under the rule of conflict of laws
in many European languages (but not in English!) called in a similar way, e.g.: German: das Statut, Dutch: statuut; Polish: statut; French: le statut; Spanish: el estatuto
Used to designate the product of application of the conflict of laws rule
We say in English e.g. the "law applicable to contracts" but in Spanish we may say "el estatuto contractual", in Dutch "het contractuele statuut", in German "das Vertragsstatut", in Polish "statut kontraktowy"
Lex:
means "the law" in Latin
Commonly used together with a proper Latin noun in the genitive, in order to denote the connecting factor
E.g. Article 11 (1) – the applicable law is the law of one's nationality – in Latin: lex patriae; Article 41 (1) – the applicable law is the law of the situation of tangible property – in Latin: lex situs rei or lex rei sitae

4. Examples of Connecting Factors
Name of the connecting factor
Name of the law applicable
Law applicable in Latin
Legal category - example
Nationality
Law of nationality (of a natural person, a spouse, a child, etc.)
Lex patriae
Capacity of natural persons (e.g. Article 11(1) PIL)
Residence (domicile)
Law of the place of residence
Lex domicilii
Capacity and personal status of stateless persons and refugees – Article 3 PIL
Habitual residence
Law of the place of habitual residence
Lex habitationis
Place (country) where the object is situated
Law of the place where the object is situated
Lex rei sitae
Rights in tangible objects (iura in rem) – Article 41(1) PIL
Place (country) where the act was accomplished
Law of the country where the juridical act was accomplished
Lex loci actus
Form of juridical acts – Article 25(1), 2nd sentence PIL
Registered office of a company
Law of the company’s registered office
Lex situs
Corporations, other legal entities and organisational units – Article 17 PIL
Place where a company was incorporated
Law where the company was founded
Lex incorporationis
Place of celebrating the marriage
Law of the place (country) where the marriage was concluded
Lex loci celebrationis
Form of marriage – Article 49(1) PIL
Place of the damage
Law of the place where the damage occurred
Lex loci damni
Article 4(1) Rome II Regulation
Choice of law by the parties
Law chosen by the parties
Lex voluntatis
Article 3(1) Rome I Regulation, Article 14(1) Rome II Regulation
The connection is ‘borrowed’ from another conflicts law provision
Law governing the act or the claim itself
Lex causae
Limitation of debts or actions – the prescription period – Article 26 PIL

5. Certain Technical Problems

6. Characterization in the Conflict of Laws
Case study No. 1
An Iraqi national Ali Hassan S. worked as a translator for the Polish troops. After having accomplished his mission, he was evacuated to Poland together with his familiy. In December 2013 his wife Fatima S. demanded a divorce decree, basing her claim on the contention that her husband had not performed his duty to pay a dowry (al-mahr), which is a kind of the 'price' for a bride in the Arabic countries – a 'consideration' for marrying a woman.
Case study No. 2
A rich Polish businessman Jan Z. is suffering from a mortal illness. Expecting the coming death, he asks his lawyer to found a trust in Malta, where he has registered a limited liability company and invested a considerable sum of money. Trust beneficiaries would be his three minor sons. The wife of Jan Z. gets to know of her husband's intention and raises her objection against it.
Case study No. 3
The Polish national Adam C. is married with the German national Louise C. The couple lives in Germany. After the death of Adam C., who instituted his Polish natural daughter as a testamentary heir, the latter is sued by the widow for payment of the equalization of the accrued gains ('Zugewinnausgleich'), i.e. the part of the value of the deceased spouse's property in the case of the marriage termination.

7. Roots of the Problem
Characterization called in other European languages as a "qualification" (so, respectively, e.g. in the French, German, Spanish, Italian, Polish legal vocabulary)
Looking for the law applicable, the court has always to choose a proper conflicts rule (into which legal category the facts of the case are to be placed?)
The object of the connection in the conflicts rule is described as a legal category ("form of the marriage", "adoption", "contractual obligation", "property", etc.)
Substantive laws of various countries differ as to their notions and systematics:
Similar legal institutions may be divergently classified
Sometimes the institution the court has to deal with may be even unknown to the law of the forum

8. Possible solutions Case study No. 1
An unpaid dowry may be classified as (a) the gift under the contract (so a 'contractual obligation'  Rome I); (b) marital property regime (Articles PILA); (c) the issue governed by the law generally applicable to the grounds for the divorce (Article 54 PILA)
Case study No. 2
Trust is a typically common law institution, yet unknown to the Polish substantive law. From the standpoint of the private international law, the relationship in question may be perceived as: (a) a contract; (b) a successoral case (Article 64 ff PILA); (c) the property (Article 41 ff PILA).
Case study No. 3
According to the German Civil Code (BGB), the Zugewinnausgleich is a claim based on the marital property regime, which may justify applying of Articles 51 and 52 PILA, or the case of successions.

9. How to Proceed? Subject-matter of the characterization – proposals:
Substantive claim
Legal rule
Legal issue ("question of law")
Four 'schools of characterization':
Lege fori (according to the law of the court's seat) – see Franz Kahn/Etienne Bartin – legal categories in conflicts rules to be understood in accordance with Polish substantive law
Lege causae (according to the law applicable) – the "vicious circle" reproach
Autonomous methods:
Comparative approach – see Ernst Rabel
Conflicts law of forum approach
Critical evaluation of the doctrine

10. Renvoi
Case study – decision of the Supr. Court of 26 Jan. 2006, II CSK 124/05
A deceased French national died intestate. She left an immovable property in Poland and no living next-of-kin. Polish fiscus successfully laid the claim to the immovable as her 'heir of the last resort' according to the Polish Civil Code. Rightly so?

11. Meaning of renvoi
Renvoi – a French term (English terms ‚remission’ or ‚transmission’ rarely used), standing for "sending back„ or „forwarding"
Differences among legal systems concerning points of connection lead to negative conflicts
Our example: law applicable to successions in Poland – basically national law of the deceased, in France – the law of his/her last domicile (movables) or the law of the situation of property (immovables), so the 'split successions' scheme

12. Variants of renvoi
Renvoi au premier degré, or the remission – we are coming back to the initial point (i.e. to lex fori)
Renvoi au second degré, or the transmission – the conflicts rule in the system of law specified as applicable refers to the law of a third country (e.g. capability of an Englishman domiciled in Germany to sign a promissory note in Poland)

13. Renvoi au premier degré
Example
Renvoi au premier degré
Article 64(2) PILA – deceased's national law
French PIL – situation of property

14. Justification of renvoi
Designation of a law applicable has a general meaning (we mind the whole system of the law as in force in the country, incl. its conflicts rules)
Respect for the foreign sovereignty
Coordination of diverging connecting factors, striving for the international harmony of decisions
In our example: the simple convenience of the Polish court (why to apply foreign law, if one can turn back to its own?)

15. Renvoi in the Polish PIL
PIL Act 2011: Article 5 – only the renvoi au 1er degré, no reference to the third country's law (exception: Article 17(2) PILA)
Exceptions from the rule, para. (2):
parties' choice of law;
formal validity of juridical acts;
Contractual or non-contractual obligations
EU Private International Law: generally no renvoi (the substantive law specified directly, see Article 20 Rome I)
Conventions – see Supr. C. decision of 14 Febr. 2013, II CSK 294/12 (1961 Hague Form of Int'l Wills Convention, Article 1) – generally NO RENVOI unless the convention so provides!

16. Thanks for your attention!