National Private International Law Statutes Example: new Czech Act on Private International Law 2012

1 - What is PIL ? (scope of application) - determination of the applicable law in private law relationships containing foreign element including application of rules not belonging to the applicable law - legal status of foreigners (foreign natural persons) and foreign legal persons in private law relationships - judicial procedure containing a foreign element - recognition and enforcement of foreign judgments - international legal assistance - international arbitration

External Relations 2 - International treaties: see the Constitution 3 - EU law: Czech law is not applicable where the EU regulation in force exists

Circumvention 4 - Circumvention: prohibited = artificial establishment or simulation of facts that create an artificial foreign element and consequently lead to the application of foreign law instead of national law “LAWYER, n. One skilled in circumvention of the law.”

5 - Peremptory norms of the national legal order The provisions of the present act do not prevent the application of provisions of the Czech law applicable in all cases when their application is obligatory regardless the applicable law. Peremptory norms of foreign law: see Rome I

Rome I - Art. 9: Overriding mandatory provisions 1. Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation. 2. Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum. 3. Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

6 - Public order reservation Applicable law = foreign law: - not applicable if EFFECTS of such an application are obviously in contradiction with the national public order. Public order = basic principles of the legal system (for inst. the prohibition of bigamy, equality of sexes) The recognition of a foreign judgment may be refused for same reasons

General part of the conflict of laws: 21 - Qualification (characterisation) The evaluation of a legal relationship or a fact for the purposes of determining the applicable law shall be made according to the national law (lex fori). Examples: type of the contract, inheritance matter Qualification made after the determining the applicable law: according to that law (lex causae)

22 - Renvoi National conflict norm (A) refers to the law of state B. Conflict norm of the state B refers - back to the national law (A) = applicable law: substantive law of state A - to the law of another state (C) = applicable law: substantive law of state C

24 - Application of foreign law Application of foreign law = obligatory (ex officio - duty of the court), no request of the party before the court is needed. The law of the foreign state must be applied in the same manner as in that state (interpretation) (for inst. "relatives"). Establishment of the content of foreign law: ex officio (duty of the court) Difficulties: opinion of the Ministry of Justice Establishment of the foreign law impossible: national law

26 - Status of foreigners and foreign legal persons (undertakings, companies) Foreigner = natural person not having the citizenship of the Czech Republic (Czech nationality) Foreign legal person: having its seat outside the Czech territory Basic rule: in their private law relationships they enjoy identical rights and duties as Czech nationals and Czech legal persons (= assimilation regime).

continued Exceptions: 1. Lack of reciprocity (when a foreign state does not recognize the assimilation regime towards Czech subjects) - the Foreign Ministry may decide that the assimilation regime shall not be applied to subjects of that state. 2. Bussiness (undertaking), labor law, intellectual property protection: special statutes or international treaties (or EU law)

28 - Double and uncertain nationality Double nationality: one of them Czech = considered to be a Czech nationality both foreign = considered to be a national of the state the nationality of which was acquired at the latest, except of cases where its factual relationship to the state of his other nationality is more intensive.

No nationality or unknown nationality: habitual residence of the person if no habitual residence: current residence (staying) if his current residence is unknown: the person shall be considered to be a Czech national (= fiction)

29 - Legal capacity Legal capacity (capacity to be subject of law and to legal actions) - applicable law (lex personalis): Natural persons: state of habitual residence (not nationality) = domicile ? legal actions: state where the action takes place (in practice: local law) Legal persons: law of the state which was applicable for its establishment (incorporation theory) legal actions: same as natural persons

Limitation of legal capacity, guardianship Limitation of legal capacity, guardianship (based always on a court decision): Czech nationals = Czech law Foreigners: Czech court shall take only necessary measures (it is a matter of the courts of the foreign state) Declaration of death of a missing person: Czech national = only Czech court

Legal actions 41 - Legal actions: applicable law = lex causae (law applicable to the effects of the action - contract)

Form (type) of the action 42 - Form (type) of the action (...oral form, in writing...) - lex causae of the contract (x) or - place of the action or - habitual residence or - nationality or - place where immovable object is situated (x). (x) = form required for the validity of the act must be respected

Limitation of rights 46 - Limitation of rights (= period after which the right cannot be enforced): applicable law = law governing the right itself

Family Law 47 - Matrimonial matters - divorce - nullity of the matrimony - existence of the matrimony Relationships between parents and children

Divorce - jurisdiction Jurisdiction of national courts (there must be certain factual connection to the Czech Republic): both spouses Czech nationals both spouses have habitual residence in the Czech Republic both spouses had habitual residence in the CR in the past, one of them still resides in the CR the defendant has habitual residence in the CR the plaintiff has habitual residence in the CR and the defendant joined the action the plaintiff has had habitual residence in the CR at least one year ..... One of the spouses only is a Czech national: if not in contradiction with an international treaty or EU regulation

Matrimonial matters - applicable law 48 Capacity to marriage and conditions of its validity: lex personalis (law of the nationality) of each of the spouses Form of solemnisation of marriage: law of the state where the marriage is solemnized Personal relations between spouses: - law of the common nationality - law of the common habitual residence - otherwise: Czech law (general rule: there must be some applicable law) Relations between spouses relating to property: - common habitual residence immediately after the solemnisation of marriage - common nationality in the moment of the solemnisation of marriage - otherwise: Czech law

Matrimonial matters – choice of law Before or at the moment of the solemnisation of marriage the spouses may choose the law for their relations relating to property. The choice is limited to the - law of their common nationality - law of the nationality of one of them - law of the habitual residence of one of them - state where the immovable property is situated - Czech law

Matrimonial matters – applicable law - 2 Divorce - applicable law for personal relations between spouses (see above) Special rule: if the applicable law does not allow the divorce, Czech law shall be applicable if at least one of the spouses has Czech nationality or habitual residence in the CR Conditions of validity of the marrige: law applicable for that in the moment of the solemnisation of marriage Maintenance between divorced spouses: law applied for the divorce

Relationships between parents and children- applicable law Determination and denial of paternity: law of the nationality of the child multiple nationality: Czech law interests of the child: law of the habitual residence of the mother in the moment of the conception of the child "Material" conflict norm: If the child has its habitual residence in the CR and the interests of the child so require, Czech law shall be applicable .........

Recognition of foreign court decisions on paternity - one of the participants had Czech nationality: special judgment of the Czech Supreme court necessary - all participants nationals of the state of the court of which decided: automatic recognition

Maintenance Applicable law: habitual residence of the child "Material" conflict norm: If the interests of the child so require, law of the child's nationality will be applicable

Other matters relating to relations between parents and children: Hague 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 (reference to a concrete convention - useful for judges and other practitioners, but rare)

Rights of unmarried mother Rights of unmarried mother (duties of the father of the child) Applicable law: habitual residence of the mother in the moment of the birth of the child The mother may invoke the aaplication of the law of its nationality.

Conditions for adoption Applicable law: both nationality of the adopted child and of the adopting person. Adopting spouses are of different nationality: conditions of both legal orders must be fulfilled. = Special case – two legal orders applicable at once

Real (property) rights Real rights (property and similar rights) (absolute rights - effective against all subjects) Applicable law: of the state where the thing (object) is situated (lex situs, lex rei sitae)

Creation and extinguishment of property rights Creation and extinguishment of property rights (ownership): immovables: lex situs tangible movables: lex situs in the moment where the decisive fact creating or extinguishing the property right occured = Mobile conflict Location of a movable object may change = change of lex situs Must be fixed to a certain moment

Mobile conflict Example: Person A sells his car to person B. Contract: ownership will pass to B only after the paying of the whole price. In the moment of establishing the contract, the car is in the Czech Rep. Afterwords (before the price is payed) the car moves to Austria. Who is the owner? Czech law: A Austrian law: B Applicable law is Czech law.

Passing of property Tangible movables - passing off property on the basis of a sales contract: law of the sales contract Acquisition of the title to property by prescription: lex situs at the beginning of the prescription period

Inheritance law Applicable law - basic rule: habitual residence of the deceased person in the moment of death = unique law applicable both for movable and immovable property Choice of law by the testator: - habitual residence or his nationality in the moment of establishing the testament (including immovable property) (very limited choice)

Inheritance law Applicable law for testaments (last will) (capacity to establish the will or legal consequences of defects of the will): law of the nationality or habitual residence of the testator

Inheritance law - Form of the testament Form of the testament (in written, holographic will - wholly in the testator's handwriting, witnesses): - nationality of the testator in the moment of the establishment of the will or in the moment of his death, if the testament not valid - state where the testament was established or where the testator died, but if the testament is still not vadid - habitual residence of the testator both in the moment of establishing the will or of death or - for immovable property: lex situs

Inheritance law No successor: movable and immovable property and rights of the deceased person situated on the territory of the CR will pass down (fall upon) the Czech state. The state is not considered to be inheritor. Intellectual property rights: applicable law = lex protectionis (law of the state providing the protection).

Jurisdiction of Czech courts in inheritance matters Jurisdiction of Czech courts: If the deceased person had his habitual residence in the CR in the moment of death immovables: exclusive jurisdiction of Czech courts Property situated abroad: jurisdiction of Czech courts is given only in case that the foreign state will deliver the property to Czech courts or recognize Czech judgments in inheritance matters

Obligations (contracts, torts) Provisions of the present statute shall be applied in connection to EU regulations. = priority of EU law - Rome I, Rome II General reception clause

Obligations (contracts, torts) Jurisdiction of courts: Basic rules: Brussels regulation I 1. It is possible to establish the jurisdiction of Czech courts by an agreement (prorogation agreement) 2. Establishing the jurisdiction of a foreign court: An agreement possible = exludes the jurisdiction of Czech courts, which is not lost (foreign judgment not recognizable, foreign court did not accept its jurisdiction)

Obligations (contracts, torts) Contracts outside EU regulations: - choice of law - otherwise the principle of the closest connection

C h o i c e o f l a w must be made expressly (explicitly) if not, must undoubtly result from the contract or facts

Choice of law General remarks to the choice of law: expression of the autonomy of will typical for private law Advantages: - predictability of law - convenience for parties - possibility to choose law of the forum - very practical

Obligations (contracts, torts) - limited choice: in special cases only for certain contracts (consumer contracts, labour contracts - unequality of parties) or outside of contract law - basic principle for contract law: unlimited choice (Rome I) including law of non-member states - non state law? = "rules of law" - dépecage

Obligations (contracts, torts) No choice of law: alternative solution - closest connection - centre of gravity of the legal relationship - reasonable arrangement of the relationship (law of the party of the contract providing characteristical performance)

Obligations (contracts, torts) Torts - damages (outside Rome 2) Applicable law: choice of law by the victim, limited to: - habitual residence or seat of the victim or of the person inflicting damage or - result of the tort (where the damage occured) No choce of law: closest connection