UNIT 20: Private international law English for the Legal Profession IV Snježana Husinec, PhD; shusinec@pravo.hr

Consider the following situations and explain the difference. An Englishman and his wife are British citizens, domiciled and resident in England, went through a ceremony of marriage in England. Later, the wife petitions an English court for a divorce. The spouses are still domiciled and resident in England. A British couple married in France, domiciled and resident in England at the time of marriage. Later on the husband petitions for divorce. At the time of his divorce petition his wife is domiciled and resident in France. DOMICILE - the country which a person officially has as their permanent home, or has a substantial connection with. RESIDENT – a person is considered a resident if present in a country for 183 days or more per tax year.  

International law vs. National law Think about the differences between national and international law concerning: A) the territory on which it is applied B) the parties involved C) the sources How would you subdivide the international law according to their characteristics?

PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW = consists of rules and principles which govern the relations and dealings of nations and other international entities with each other PUBLIC INTERNATIONAL LAW (Law of nations) PRIVATE INTERNATIONAL LAW (Conflict of Laws) SUPRANATIONAL LAW relations between several nations or -nations and the citizens or subjects of other nations (sources: customary law and conventional agreements – treaties, conventions, charters judicial decisions , judicial writings) conflicts between private persons, natural or artificial, arising out of situations having relationship to more than one nation (sources: a branch of internal law – national and customary law) -the law of supranational organizations (regional agreements - European Union law - the first and only example of a supranational legal framework)

Consider the following case and answer the questions: An English and a French litigant have dispute over a breach of contract concluded in Italy to be performed in Spain. In your view, which legal problems would arise in such a situation? Which legal issues would have to be solved? Does this matter belong in the realm of public, private or supranational law?

Conflict of Laws / Private International Law - term stems from Ulrich Huber (Netherlands) - nowadays used primarily in the United States, Canada, and, increasingly, the United Kingdom Private international law - term first used by Joseph Story (USA) in 1834 - used in most other countries and in the UK

Private internatinal law / Conflict of laws A part of national law which establishes rules for dealing with cases involving a FOREIGN ELEMENT. It is concerned with cases in which the parties or other relevant issues are connected with more than one country. (The conflict arises from the difference between legal systems.) What do you think can constitute a foreign element? Find examples in the first paragraph of the text. Why ist it classified as PRIVATE and why as INTERNATIONAL law?

The term ¨country¨in private international law COUNTRY = any territorial unit having its own sparate system of law (no matter whether it consitutes an independent state politically) Decide which of the following territorial units can be referred to as ¨country¨ in private international law? UK, Ontario, California, Croatia, Scotland, Wales, Australia, Canada, England, Ireland, Northern Ireland

Issues to be decided in conflict of law cases What issues, do you think, should be decided by conflict of law rules?

Conflict of Laws Addresses the following questions: 1) JURISDICTION - In which legal jurisdiction may a case be heard? (determining whether the proposed forum has jurisdiction to adjudicate and whether it is the appropriate venue for dealing with the dispute) 2) CHOICE OF LAW - The law of which jurisdiction(s) should be applied to the issues in the case? determining which of the competing state's laws are to be applied to resolve the dispute – choice-of-law rules (zakoni o rješavanju sukobu zakona) (the court first must settle these conflict of law questions before beginning to hear the merits of the case and deciding on a resolution to the dispute) 3) RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS - How a foreign judgment will be enforced?

Areas of law involving conflict of laws Law of obligations (contracts, torts) Property and succession (property inter vivos, succession, matrimonial property relations) Family law (marriage, divorce, children)

The stages in a conflict case 1.The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate venue resolving the issue of forum shopping 2.The characterization of the cause of action into its component legal categories which may sometimes involve an incidental question 3. Each legal category has one or more choice of law rules to determine which of the competing laws should be applied to each issues 4.Application of selected laws to reach a judgment. 5.The successful party must enforce the judgment which will first involve the task of securing cross-border recognition of the judgment.

Choice of law rules Courts faced with a choice of law issue have a two-stage process: 1. the court will apply the law of the forum (lex fori) to all procedural matters 2. it counts the factors that connect (connecting factors) or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection

e.g. -the law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity, -the law of the state in which property is situated (lex situs) will be applied to determine all questions of title, -the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, (In any case PROPER LAW will bi applied!!! Proper law = the law which seems to have the closest and most real connection to the facts of the case, and so has the best claim to be applied (US the most significant relationship test is conducted)

Case study 1 A who has a French nationality and residence in Germany B who has American nationality, domicile in Arizona, and residence in Austria C a Swiss national, owns property in Switzerland A corresponds with B over the internet. They agree the joint purchase of land in Switzerland, currently owned but C, but they never physically meet. They execute initial contract documents by using fax machines, followed by a postal exchange of hard copies. A pays his share of the deposit but, before the transaction is completed, B admits that although he has capacity to buy land under his lex domicilii and the law of his residence, he is too young to own land under Swiss law.

Case study 2 Schwebel v Ungar [1964] 48 DLR (2d) 644 Supreme court of Canada A Jewish husband and wife, domiciled in Hungary married in Hungary. While they were emigrating to Israel, they found themselves in Italy and the husband divorced his wife by get (divorce document in Jewish religious law). Under the laws of Hungary (their lex domicilii) and Italy, the religious form of divorce was invalid, but it was recognised as effective by the law of Israel where they acquired a domicile of choice. Subsequently, the wife moved to Canada and, without abandoning her Israeli domicile, went through a second ceremony of marriage. The second husband petitioned for nullity alleging that the marriage was bigamous.

Case study 2 - Ruling The Supreme Court held the marriage to be valid. - The main question was the wife's capacity to marry which, under Canadian law, is determined by her lex domicilii, i.e. the law of Israel at the time of the second ceremony. - The incidental question was the validity of the divorce which was to be determined either a) by their lex domicilii at the relevant time or b) by Italian law as the lex loci actus. The court decided that the wife had the capacity to marry and that the divorce was valid. The judgment seems to suggest that the court decided both questions by reference to the law of Israel as the law governing the main question.

Reading comprehension: Read the text carefully and answer the questions in ex. III. Do ex. IV and V.

Vocabulary practice Find in the text the following English terms and expressions and translate them into Croatian. conflict of law rules to law of the domicile or habitual residence to raise a conflict of laws issue to exercise jurisdiction recognition and enforcement of foreign judgments to give effect to the judgments of foreign courts to have a judgment satisfied out of the defendant’s assets to make a commitment to adhere to the principles of the treaty consistency in treatment of cross-boarder issues

Part Two: Case Analysis: Hodas v. Morin Study the Hodas v Morin case on p. 206-208 and do the exercises. What is your opinion of the problem of conflict between the parties’ choice of law provision and a state’s public policy? Which one should prevail?

Zakon o rješavanju sukoba zakona s propisima drugih zemalja u određenim odnosima, NN 53/91, 88/01 Study the following case Croatian couple married in France, domiciled and resident in Croatia at the time of marriage. Later on the husband petitions for divorce. At the time of his divorce petition his wife is domiciled and resident in France. and do the following: Characterize the cause of action into its legal components (legal elements of the case; the questions that need to be answered) Determine the choice-of-law rules for each element Determine the connecting factors for each rule (by which national law should each question be answered) Use Chapter II (APPLICABLE LAW) of the Croatian Conflict of Laws Act and try to answer some of the questions. 1.