IntroductionIntroductionto Polish Private to Polish Private International LawInternational Law

3rd Classes3rd Classes

Dr. Mateusz PilichDr. Mateusz PilichChair of Int’l Private and Trade Law,Chair of Int’l Private and Trade Law,

University of WarsawUniversity of Warsaw

StructureStructureof the Conflict Law Rulesof the Conflict Law Rules

(A Supplement)(A Supplement)

Law applicable vs Law applicable vs Lex…Lex…

Law applicable:Law applicable: national law which governs a given relationship, it applies under the rule of conflict of national law which governs a given relationship, it applies under the rule of conflict of

lawslaws in many European languages (but not in English!) called in a similar way, e.g.: German: in many European languages (but not in English!) called in a similar way, e.g.: German:

das Statut, das Statut, Dutch: Dutch: statuut;statuut; Polish: Polish: statut; statut; French: French: le statut; le statut; Spanish: Spanish: el estatutoel estatuto Used to designate the product of application of the conflict of laws ruleUsed 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 We say in English e.g. the "law applicable to contracts" but in Spanish we may say "el "el

estatuto contractual", estatuto contractual", in Dutch in Dutch "het contractuele statuut", "het contractuele statuut", in German in German "das "das

Vertragsstatut"Vertragsstatut", in Polish , in Polish "statut kontraktowy""statut kontraktowy"

LexLex:: means "the means "the law" law" in Latinin Latin Commonly used together with a proper Latin noun in the genitive, in order to denote the Commonly used together with a proper Latin noun in the genitive, in order to denote the

connecting factorconnecting factor E.g. Article 11 (1) – the applicable law is the E.g. Article 11 (1) – the applicable law is the law of one's nationality law of one's nationality – in Latin: – in Latin: lex lex

patriaepatriae; Article 41 (1) – the applicable law is the ; Article 41 (1) – the applicable law is the law of the situation of tangible law of the situation of tangible

propertyproperty – in Latin: – in Latin: lex situslex situs rei rei or or lex rei sitaelex rei sitae

Examples of Connecting Examples of Connecting FactorsFactors

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 PILHabitual 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 PILPlace where a company was

incorporatedLaw where the company was

foundedLex 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

Certain Technical Certain Technical ProblemsProblems

CharacterizationCharacterizationin the Conflict of Lawsin the Conflict of Laws

Case study No. 1Case study No. 1

An Iraqi national Ali Hassan S. worked as a translator for the Polish troops. After accomplishing An Iraqi national Ali Hassan S. worked as a translator for the Polish troops. After accomplishing

his mission, he was evacuated to Poland together with his familiy. In December 2013 his wife 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 Fatima S. demanded a divorce decree, basing her claim on the contention that her husband had not performed his duty to pay a dowry (had not performed his duty to pay a dowry (al-mahral-mahr), which is a kind of the 'price' for a bride in ), which is a kind of the 'price' for a bride in the Arabic countries – a 'consideration' for marrying a woman.the Arabic countries – a 'consideration' for marrying a woman.

Case study No. 2Case study No. 2

A rich Polish businessman Jan Z. is suffering from a mortal illness. Expecting the coming death, A rich Polish businessman Jan Z. is suffering from a mortal illness. Expecting the coming death,

he asks his lawyer to found a he asks his lawyer to found a trust trust in Malta, where he has registered a limited liability in Malta, where he has registered a limited liability company and invested a considerable sum of money. Trust beneficiaries would be his three 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 minor sons. The wife of Jan Z. gets to know of her husband's intention and raises her objection against it.against it.

Case study No. 3Case study No. 3

The Polish national Adam C. is married with the German national Louise C. The couple lives in 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 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 testamentary heir, the latter is sued by the widow for payment of the equalization of the accrued gains (accrued gains ('Zugewinnausgleich''Zugewinnausgleich'), i.e. the part of the value of the deceased spouse's ), i.e. the part of the value of the deceased spouse's property in the case of the marriage termination.property in the case of the marriage termination.

Roots of the ProblemRoots of the Problem

Characterization called in other European languages as a Characterization called in other European languages as a "qualification""qualification" (so, (so,

respectively, e.g. in the French, German, Spanish, Italian, Polish legal respectively, e.g. in the French, German, Spanish, Italian, Polish legal

vocabulary)vocabulary) Looking for the law applicable, the court has always to choose a proper Looking for the law applicable, the court has always to choose a proper

conflicts rule (into conflicts rule (into whichwhich legal category legal category the facts of the case are to be the facts of the case are to be

placed?)placed?) The object of the connection The object of the connection in the conflicts rule is described as a in the conflicts rule is described as a legal legal

categorycategory ("form of the marriage", "adoption", "contractual obligation", ("form of the marriage", "adoption", "contractual obligation",

"property", etc.)"property", etc.) Substantive laws of various countries differ as to their notions and Substantive laws of various countries differ as to their notions and

systematics:systematics: Similar legal institutions may be divergently classifiedSimilar legal institutions may be divergently classified Sometimes the institution the court has to deal with may be even unknown to Sometimes the institution the court has to deal with may be even unknown to

the law of the forumthe law of the forum

Possible solutionsPossible solutions

Case study No. 1Case study No. 1

An unpaid dowry may be classified as (a) the gift under the contract (so a An unpaid dowry may be classified as (a) the gift under the contract (so a 'contractual obligation' 'contractual obligation' Rome I); (b) marital property regime (Articles 51-52 Rome I); (b) marital property regime (Articles 51-52 PILA); (c) the issue governed by the law generally applicable to the grounds for PILA); (c) the issue governed by the law generally applicable to the grounds for the divorce (Article 54 PILA)the divorce (Article 54 PILA)

Case study No. 2Case study No. 2

Trust is a typically Trust is a typically common law common law institution, yet unknown to the Polish institution, yet unknown to the Polish substantive law. From the standpoint of the private international law, the substantive law. From the standpoint of the private international law, the relationship in question may be perceived as: (a) a contract; (b) a successoral 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 (Article 64 ff PILA); (c) the property (Article 41 ff PILA).

Case study No. 3Case study No. 3

According to the German Civil Code (BGB), the According to the German Civil Code (BGB), the ZugewinnausgleichZugewinnausgleich is a claim is a claim based on the marital property regime, which may justify applying of Articles 51 based on the marital property regime, which may justify applying of Articles 51 and 52 PILA, or the case of successions.and 52 PILA, or the case of successions.

How to Proceed?How to Proceed?

Subject-matterSubject-matter of the characterization – proposals: of the characterization – proposals: Substantive claimSubstantive claim Legal ruleLegal rule Legal issue ("question of law")Legal issue ("question of law")

Four 'schools of characterization':Four 'schools of characterization': Lege fori Lege fori (according to the law of the court's seat) – see Franz (according to the law of the court's seat) – see Franz

Kahn/Etienne Bartin – legal categories in conflicts rules to be understood Kahn/Etienne Bartin – legal categories in conflicts rules to be understood in accordance with Polish substantive lawin accordance with Polish substantive law

Lege causaeLege causae (according to the law applicable) – the "vicious circle" (according to the law applicable) – the "vicious circle" reproachreproach

Autonomous Autonomous methods:methods: Comparative Comparative approachapproach – see Ernst Rabel– see Ernst Rabel Conflicts law of forum Conflicts law of forum approachapproach

Critical evaluation of the doctrineCritical evaluation of the doctrine

RenvoiRenvoi

Case study – decision of the Supr. Court Case study – decision of the Supr. Court of 26 Jan. 2006, II CSK 124/05of 26 Jan. 2006, II CSK 124/05

A deceased A deceased French nationalFrench national died intestate. died intestate. She left an immovable property in Poland and She left an immovable property in Poland and no living next-of-kin. Polish no living next-of-kin. Polish fiscusfiscus successfully successfully laid the claim to the immovable as her 'heir of laid the claim to the immovable as her 'heir of the last resort' according to the the last resort' according to the Polish Civil Polish Civil CodeCode. Rightly so?. Rightly so?

Meaning of Meaning of renvoirenvoi

Renvoi Renvoi – a French term (no unique English one), – a French term (no unique English one), standing for "sending back", "remaining unsettled"standing for "sending back", "remaining unsettled"

Differences among legal systems concerning points Differences among legal systems concerning points of connection lead to negative conflictsof connection lead to negative conflicts

Our example: law applicable to successions: in Our example: law applicable to successions: in Poland – basically Poland – basically national law of the deceasednational law of the deceased, in , in France – the law of his/her France – the law of his/her last domicilelast domicile (movables) (movables) or the or the law of the situation of propertylaw of the situation of property (immovables), so the (immovables), so the 'split successions' scheme'split successions' scheme

Variants of Variants of renvoirenvoi

Renvoi au premier degréRenvoi au premier degré, or the , or the remissionremission – we are – we are coming back to the coming back to the initial pointinitial point (i.e. to (i.e. to lex forilex fori))

Renvoi au second degréRenvoi au second degré,, or the or the transmissiontransmission – the conflicts rule in the – the conflicts rule in the system of law specified as applicable system of law specified as applicable refers to the law of a third country refers to the law of a third country (e.g. (e.g. capability of an Englishman domiciled in Germany to capability of an Englishman domiciled in Germany to sign a promissory note in Poland)sign a promissory note in Poland)

ExampleExample

Article 64(2) PILA – d

eceased's national law

French PIL – situation of property

Renvoi au premier degré

Justification of Justification of renvoirenvoi

Designation of a law applicable has a Designation of a law applicable has a general general meaningmeaning (we mind the whole system of the law as in force (we mind the whole system of the law as in force in the country, incl. its conflicts rules)in the country, incl. its conflicts rules)

Respect for the Respect for the foreign sovereigntyforeign sovereignty CoordinationCoordination of diverging connecting factors, of diverging connecting factors,

striving for the striving for the international harmonyinternational harmony of decisions of decisions In our example: In our example: the simple conveniencethe simple convenience of the of the

Polish court (why to apply foreign law, if one can Polish court (why to apply foreign law, if one can turn back to its own?)turn back to its own?)

RenvoiRenvoi in the Polish PIL in the Polish PIL

PIL Act 2011: Article 5 – only the PIL Act 2011: Article 5 – only the renvoi au 1renvoi au 1erer degré degré, no , no reference to the third country's law (exception: Article 17(2) reference to the third country's law (exception: Article 17(2) PILA)PILA)

Exceptions from the rule, para. (2):Exceptions from the rule, para. (2): parties' choice of law;parties' choice of law; formal validity of juridical acts;formal validity of juridical acts; Contractual or non-contractual obligationsContractual or non-contractual obligations

EU Private International Law: generally EU Private International Law: generally no renvoino renvoi (the (the substantive law specified directly, see Article 20 Rome I)substantive law specified directly, see Article 20 Rome I)

Conventions – see Conventions – see Supr. C. decision of 14 Febr. 2013, II CSK Supr. C. decision of 14 Febr. 2013, II CSK 294/12 294/12 ((1961 Hague Form of Int'l Wills Convention, Article 1))

Thanks for your Thanks for your attention!attention!