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Private international law 2016 PRIVATE INTERNATIONAL LAW 2 JURISDICTION 5 BRUSSELS I BIS REGULATION 10 CHOICE OF COURT AGREEMENTS 15 FORUM CONTRACTUS 31 LIS ALIBI PENDENS 41 ROME I REGULATION 47 CHOICE OF LAW ( BY THE PARTIES) 54 UNIFICATION OF PRIVATE LAW 59 MANDATORY RULES 66 PUBLIC POLICY 72 ROME II REGULATION 77 CROSS - BORDER EMPLOYMENT CONTRACTS 84 CISG – VIENNA S ALES CONVENTION 92 PRIVATE INTERNATIONAL LAW Concept Private international law (also called 'conflict of laws') is a branch of law which aims to provide legal answers to the issues arising out of cross-border private relationships. Such relationships may be civil or commercial : it may concern family relationships (e.g. adoption or a marriage between two spouses having different nationalities), civil issues (e.g. where may the German owner of an apartment located on the French Riviera bring court proceedings against the German family who has rented out his apartment for one week during the summer holidays and neglected to turn the water tap off when they left the premises) and commercial matters (e.g. when a business established in Germany pledges its receivables to a Luxembourg bank in order to guarantee a line of credit, which law should the bank use to verify that the pledge may be opposed to other creditors of the business?). When a private relationship has a cross-border dimension, it touches upon several States. The question arises which of those States is empowered to regulate the relationship. This general question may be fine tuned in three more precise questions: – which court has authority to adjudicate disputes; the same question arises in relation with authorities which are called upon to intervene in non contentious matters, such as e.g. when two persons wish to get married. This is a question of 'jurisdiction'. – which legal rules will apply to a cross-border private relationship. This is the question of the applicable law. – what will be the effects of a judgment issued by a foreign court or of an act issued by another authority (such as a civil status document). These three different processes are by no means the only questions which arises in relationship with cross-border private relationships. Other questions arise, in particular in relation to cross-border court proceedings (e.g. how to ensure that court documents are duly transmitted to a person located in another country and how to gather evidence which is located in another country). Private international law : national or international rules? Private international law is a matter taken up first by States. States decide how to deal with cross- border private relationships. Each State should for example decide in which circumstances its courts may take up a cross-border divorce case. Each State should also decide if and when non-residents may marry on its territory. In many countries, rules of private international law have been included in the Civil code. This is e.g. the case in Germany : the German Civil Code (‘BGB’) includes an introductory section (‘EGBGB’) which is entirely devoted to private international law issues. In other countries, specific acts have been adopted which provide solutions for private international law questions. This is the case e.g. in Switzerland (Federal Private International Law Act of 1987) and in Belgium (Code of Private International Law, adopted in 2004). In yet other countries, private international law issues are dealt with by scattered statutory provisions complemented by case law. Applying national solutions to cross-border relationships may prove unsatisfactory. If two spouses wish to divorce, and have a choice between two States because each of these States apply its own PRIVATE INTERNATIONAL LAW 2016 rules of jurisdiction, this may create undue difficulties, as each spouse may rush to the court it deems more favorable to its case. If the spouses find out that the courts of the two States will not necessarily apply the same law to determine their matrimonial property regime, this may be an additional incentive for the spouses to weigh one court against another. The different legal regimes could also mean that spouses who believed they were married under a community of property regime find themselves subject to a separation of assets regime. For a long time, the international community has attempted to create a more international framework, bringing global answers to private international law. The Hague Conference on private international law, which was established in 1893, has been a key actor in unifying private international law rules. The Conference has produced some 40 international treaties ('Conventions') which cover various aspects of cross-border private relationships : traffic accidents (Convention of 4 May 1971 on the Law Applicable to Traffic Accidents); securities held by an intermediary (Convention of 5 July 2006 on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary) and child protection (Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children). The Hague Conventions touch on the three fundamental dimensions of private international law issues : jurisdiction, applicable law and enforcement of foreign judgments. In some fields, the Hague Conference has adopted novel solutions, which go beyond the traditional private international law toolbox. The 1980 Hague Child Abduction Convention is a good example : this Convention does not include uniform conflict of laws rules which help determine which law applies to a cross-border child abduction case. It does not purport to create uniform rules of jurisdiction, allocating jurisdiction among Contracting States in relation to child abduction cases. Neither does it put forward a scheme for the mutual recognition of judgments. Rather, the Convention is based on a general principle, i.e. that a child who has been abducted by one of his parents, should be brought back to the country he or she lived in before the abduction. This principle is worked out further in the Convention using cooperation mechanisms among Contracting States. The Hague Conference is for a large part dependent on States for ratification. Some Hague Conventions have enjoyed a significant number of signatures and acceptances. This is e.g. the case with the 1980 Hague Abduction Convention, which is in force in 95 countries. Other conventions are much less successful. The 1978 Hague Matrimonial Property Convention has only been accepted by three countries. More information on the work of the Hague Conference may be found at A major advantage of international solutions for private international law issues, is that all States involved will apply the same rules. If two States are party to an international convention which includes conflict of laws rules in relation to the liability of major industrial plants, the courts and authorities of these two States will apply the same law to a cross-border liability case involving such plant. This will do more justice to the cross-border nature of the situation. In recent decades, the EU has taken up a very active role in private international law. The EU's intervention is premised on the idea that having uniform rules of private international law is necessary for the achievement of the EU's objectives and in particular ensuring that individuals and companies may freely take advantage of the internal market. The EU has adopted a large number of Regulations dealing with various issues of private international law. Among the major Regulations adopted so far, one can mention: – the Brussels Ibis Regulation (Regulation 1215/2012) – this Regulation provides uniform PRIVATE INTERNATIONAL LAW 2016 rules of jurisdiction and introduced a very smooth mechanism of cross-border enforcement for judgments in civil and commercial matters. – the Rome I Regulation (Regulation 593/2008) – this Regulation includes uniform conflict of laws rules dealing with cross-border contracts. – the Insolvency Regulation (Regulation 1346/2000) – this Regulation includes uniform rules of jurisdiction, uniform conflict of laws rules and a mechanism for the cross-border enforcement of judgments in insolvency matters. – the Rome II Regulation (Regulation 864/2007) – this Regulation includes uniform conflict of laws rules dealing with cross-border liability cases. As with other attempts to unify private international law rules, European private international law offer the advantage of uniformity : the relevant rules are identical in all Member States. Hence, in principle, a situation having links with two or more Member States will be treated exactly the same way in those two States. The EU is also active in private international law matters thanks to the intervention of the ECJ. The ECJ has indeed issued a number of rulings based on primary EU law, which have a direct impact on private international law questions. In the Garcia Avello case, the Court decided for example that when it decides on an application by an individual to have its family name modified, a Member State may not consider that the individual only possesses its nationality, if it appears that the person concerned also possesses the nationality of another Member State. The ECJ based this ruling primarily on the equality principle : treating a dual national, who possesses the nationalities of two Member States, as one would treat somebody who only possesses the nationality of one Member State, constitutes a violation of the prohibition of discrimination, if the difference of treatment is not justified by compelling mandatory reasons. The policies of private international law When studying the rules of private international law, one may be struck by their indirect nature : those rules do not spell out precisely the rights and obligations of parties. They do not indicate who is right and who is wrong. Rather, the rules of jurisdiction will indicate which court may hear a dispute. Conflict of laws rules will lead to the applicable norms. And rules relating to the mutual recognition of judgments and acts will ensure that what has been decided in one country, also has effect in another country. Once the court having jurisdiction and the applicable law has been identified, private international law has played out its role. It would be tempting to infer from this picture that private international law is a rather abstract branch of law, void of any policy preferences or choices. This would be shortsighted. Although it is true that private international law is primarily a law of ‘coordination’, i.e. that its rules help to coordinate the working of different national legal systems, private international law also pursues its own agenda. A primary objective of private international law is to ensure decisional harmony (‘Entscheidungseinklang’) among States, i.e. that a given situation is treated equally by the authorities of different States. This ideal is not often achieved. It remains, however, an overall objective of the discipline. Private international law is further not immune for considerations of legal certainty, which also influence the design and interpretation of many of its rules. Private international law rules may also be drafted as to further policy objectives of other disciplines. Rules applicable to cross-border consumer contracts will often attempt to favor the consumer, e.g. by attempting to ensure that a consumer may bring proceedings before a court of its residence and ensuring that a contract dispute will be settled according to the law of the consumer’s residence. PRIVATE INTERNATIONAL LAW 2016 Other languages: FR : 'Droit international privé'; NL : 'internationaal privaatrecht'; DE : 'Internationales Privatrecht' PRIVATE INTERNATIONAL LAW 2016 JURISDICTION Concept Jurisdiction can be defined as the possibility for a public authority to exercise its power. Jurisdiction is a generic concept which is used in many branches of the law. In tax law, jurisdiction may refer to the ability of a State to levy a tax on a given activity. In criminal law, jurisdiction may be understood as the possibility for the authority of a State to prosecute a crime. Jurisdiction is not a concept specific to the activities of one branch of government (legislative, executive or judiciary), nor is it specific to cross-border activities. It is also widely used in domestic relationships – e.g. when referring to the jurisdiction of a given public authority to settle a dispute. As it is used in cross-border private relationships, jurisdiction refers commonly to the power of a court to hear a dispute which presents an international dimension. In this sense, in private international law, it primarily refers to the jurisdiction to adjudicate, i.e. the possibility for a court to render a judgment in a dispute (as opposed to jurisdiction to prescribe, which primarily refers to the activity of the legislative branch; and jurisdiction to enforce, which refers to the possibility for a court to enforce its own rules and laws). If a dispute or a legal relationship has links with more than one country (e.g. because one of the parties is not established in the country where the court seized is located, because a party has the nationality of another country, or because the subject matter of the dispute has links with another country), the question arises which one of these countries may hear the dispute. Although the concept is primarily used in relation to courts, it is also relevant when dealing with other authorities such as civil registrars – one may for example examine whether the civil registrar of Belgium may celebrate a marriage between two individuals living in China when of the future spouses possesses Belgian citizenship. As it is used in private international law, the concept of jurisdiction refers to international jurisdiction. In other words, it leaves open the questions of subject-matter jurisdiction and venue or territorial jurisdiction. When answering the question of international jurisdiction, one will determine not so much which court will hear the claim, but rather which State may address the dispute. In a second stage, one will need to find out which court within that State has venue and subject-matter jurisdiction. National and international rules of jurisdiction Some rules of jurisdiction are adopted by States individually. A country may for example decide that its court may always be seized of a divorce petition when the marriage has been concluded by its authorities or when the spouses both possess the nationality of the country. In Belgium, such rules of jurisdiction may be found in the Code of Private International Law (Act of 16 July 2014). The Code includes general rules of jurisdiction, applicable in all matters covered by the Code (articles 5 to 14). It also includes rules of jurisdiction specific to some subject matters such as matrimonial relationships (art. 42-43) or insolvency (art. 118). Other rules are adopted jointly by several States. Such unified rules of jurisdiction are from time to time included in international conventions. Article 31 of the CMR-Convention (Convention on the Contract for the International Carriage of Goods by Road, Geneva, 19 May 1956) offers one example : this provision includes several rules of jurisdiction dealing with proceedings arising out of carriage of goods by road. Some Conventions adopted by the Hague Conference also include unified rules of jurisdiction – see e.g. the articles 5 to 14 of the 1996 Convention on the protection of children. These rules apply uniformly in all countries bound by the treaty or convention, ensuring that a dispute will be treated uniformly by the authorities of these countries. PRIVATE INTERNATIONAL LAW 2016 The EU has also adopted several Regulations which include rules of jurisdiction – this is e.g. the case for the Brussels Ibis Regulation, the Insolvency Regulation, the Brussels IIbis Regulation, the Maintenance Regulation etc. The benefit of such unified rules of jurisdiction is that they are shared by all the States bound by the Regulation. This helps reduce the number of instances in which courts of different States will concurrently claim jurisdiction in the same case. At the same time, such unified rules of jurisdiction create a level playing field for litigants, who can more easily assess in which jurisdiction they may bring proceedings or be brought before a court. Common rules of jurisdiction also make it possible for one State to effectively claim exclusive jurisdiction. A unilateral claim of exclusive jurisdiction by a single State is indeed not effective, as this State cannot impose its claim on other States. Finally, unified rules of jurisdiction make it easier for States to accept a far reaching system of mutual recognition of judgments. As all States concerned share the same rules of jurisdiction, a scheme of mutual recognition may be adopted without any prior verification of the jurisdiction of the court of origin. In that respect, the unification of rules on jurisdiction is a prerequisite for an agreement between the States concerned on a mutual recognition of judgments. International law does not constrain very much States in regulating the cross-border jurisdiction of their courts. Public international law does not indeed include many limits on the extent to which a State may define the adjudicatory authority of its courts. Varieties of rules of jurisdiction Whether adopted by a single State or by several States acting together, rules of jurisdiction may use different methods to determine which court has jurisdiction. Some rules will apportion jurisdiction based on geographical factors. Jurisdiction may for example be tied to the fact that a person or company has a physical presence in a country (e.g. courts of country A may be seized of a dispute against any individual whose habitual residence is located in country A). This is also the case when jurisdiction is granted to the courts of the place where a contract must be performed (Article 7(1) of the Brussels Ibis Regulation), where a harmful event took place (Article 7(2) of the Brussels Ibis Regulation) or where a person habitually resides (Article 4 of the Succession Regulation). The policy behind such rules of jurisdiction is that the rules will grant jurisdiction to courts having a special, substantive link with the dispute or the parties (or both) on account of the geographical element which lies at the basis of the rule. This connecting factor will ensure a sound administration of justice as it will make it easier to conduct the proceedings. The difficulty with this type of rules is that some activities leading to disputes are scattered among different countries, making it more difficult to find out which country should have the lead in exercising jurisdiction. Further, some disputes may concern non physical activities, such as on line activities. Using geographical concepts may be less suited in that case. Other rules will allocate jurisdiction based on substantive policy concerns - e.g. the courts of country B may be seized of any dispute relating to the in rem status of immovables located on the national territory. The purpose of such rule is to protect the monopoly of courts of country B in relation to such disputes because country B deems it crucial that only its authorities exercise jurisdiction over such disputes and that its law be applied to them. The rule of jurisdiction is in this case drafted to serve a state’s regulatory interests, and more specifically to make sure that certain of its mandatory rules are applied. Another example of this type of rule of jurisdiction may be found in relation to consumer disputes : under Article 18(2) of the Brussels I
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