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

Structure of the Conflict Law Rules (A Supplement)

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

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

Certain Technical Problems

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.

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

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 51-52 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.

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

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?

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

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)

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

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?)

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!

Thanks for your attention!