The magic evolution of conflict of laws Tamas Dezso Ziegler The magic evolution of conflict of laws (Internationalisation, interdependence and the role of tolerance)

Changes in conflict of laws Switzerland: from famine to success Public choices set the direction of future (Brexit, progression, nationalism and tolerance, etc.) Dissertation + conference: the role of nationality Jürgen Basedow’s book – The Law of Open Societies. Brill, 2015.

Open societies Karl Popper: The Open Society and its Enemies. 1945. Closed and open societies Closed state: governed by an elite, asks for conformism, have authoritarian leaders, etc. Open society: tolerant, fights against intolerance, democratic system

Closed societyies ‚…are not based upon tradititional attempt to improve social conditions…. Taboos rigidly regulate and domiate all aspects of life… The right way is always determined, though difficulties must be overcome in following it. It is determined by taboos, by magical tribal institutions which can never be objects of critical consideration. Based upon the collective tribal tradition, the institutions leave no room for personal responsibility.’ (Basedow cites Popper, p. 26.)

Tendencies on the world Interdependency: states, persons and businesses are connected and depending on each other: Did Milan got closer to Germany? (Ole Lando) Commercial relations got more intensive Continents get ’unified’: NAFTA, South America: UNASUR, ASEAN+6, Africa: Continental Free Trade Area (CFTA) Nationalism got weaker Migration: more people move (however, the % of population is not necessary higher than 100 years before) Swim against the stream: protectionism, isolationism, racism, retrograde politics

General observations: extreme fragmentation The Hague Conference on Private International Law EU: explicit rules  ”hidden” rules State legislation

General observations: role of citizenship fades away Kegel, 1977: „The most important connecting principle in German private international law is the principle of nationality” 1977, EGBGB (examples): Concluding mariages: if one of the parties has German nationality: german law Obligations: Damages: joint citizenship exception v Rome II – joint habitual residence (also: affiliate of a German company made damage to a German citizen abroad: German law) In certain cases: compensation for a damage could not be higher than the provisions set by German law, IF defendant was German Contracts: may chose the country of citizenship USA:  domicile was used instead!!

Habitual residence gets important EU legislation on choice of law (e.g. Rome I): „a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence 1980 Rome Convention:  most closely connection: party’s habitual residence Definition of habitual residence also changed: permanent centre of interests v. actual stay (important!!!!! You can move freely!!!)  

Jurisdiction: freedom to chose the proceeding court Arbitration: Even against the state! (ICSID, ICC court, etc.) – the Hungarian method: banning arbitration against the state Consumers and arbitration: problematic Foreign courts  

Jurisdiction: Kylie Minogue case (eDate Advertising case) Defamation: Kylie Minogue case: internet and damages: more open approach  

Jurisditcion: forum non conveniens First: forum non competent Scottish principle moves into English law in the second part of the 20th century EU: Owusu v. Jackson My personal opinon: is against human rights, esp. against access to justice A result of (or a compensation for) nationalism? 

Applicable law: vulnerable people received protection Consumer law provisions Product liability: if a product makes damage to someone Labour law  

Applicable law Choice of law clauses are available in more situations: for damages (see e.g. Rome II) For family relationships The principle of closer connection and closest connection as an exception got widespread: more freedom for judges Country of origin principle: uncommon  

Law applicable to contracts: the chaos in the USA Different methods: Classic “place of contracting” Centre of gravity test (significant contact approach) Better law approach Governmental interest analysis Law of the forum Place of performance Second Restatement: The law of the state/country that has the most significant relationship to the transaction and the parties  

Recognition and enforcement of judgments International (bilateral) agreements Then: mutual recognition: if the pther country also accepts our judgments Exequatur process: special process for the recognition EU: Brussels Ibis: breaks through these rules: automatic recognition  

Recognition and enforcement of public documents Extremely important for legal practice: in certain countries signature specimens are necessary if you want to create a company Certain countries did not accept the signatures because of safety reasons Hungary: a public document (e.g. a document apprved by a notary public) can be enforced easier Consulate or Ministries Apostille: special procedures were needed Recently: recognition and enforcement got widespread in the EU 

Conclusion Private international law became  a tool and indicator of tolerance and opennes of a society.