Conflict of Laws Unit 28

Compare the following situations: CASE ACASE B An Englishman and woman are British citizens, domicilied 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.

Topics to be decided: 1. 1.the court jurisdiction (Does an English court have the competence to hear and determine a case?) 2. 2.the selection of the appropriate rules of a system of law (English or foreign?) – the rules governing this selection are known as “choice of law” 3. 3.the recognition and enforcement of judgements rendered by foreign courts

TERRITORY A TERRITORY B A CASE involving more than one territory A situation in which a case contains a foreign element... TERRITORY: state, province, canton...

Read the following defintion and underline the key words. Conflict of laws means discordance between the laws of one country and another, as applied to the same subject-matter,... Rules of law have been developed to deal with conflict of laws, rules for determining which country’s courts are the appropriate forum for the dispute, and which country’s law is the appropriate law for the resolution of the dispute. J. E. Penner: The Law Student’s Dictionary, Oxford, 2008

CONFLICT OF LAWS (PRIVATE INTERNATIONAL LAW) A) in common law system A) in common law system - a branch of international law that regulates all lawsuits - a branch of international law that regulates all lawsuits involving a "foreign" law element involving a "foreign" law element B) in civil law system B) in civil law system - a law branch of internal legal system dealing with - a law branch of internal legal system dealing with 1) the determination of which state law is 1) the determination of which state law is applicable to situations crossing out the borders applicable to situations crossing out the borders of one particular state and involving a "foreign" of one particular state and involving a "foreign" element element 2) the international civil procedure and international 2) the international civil procedure and international commercial arbitration (collisions of jurisdiction, commercial arbitration (collisions of jurisdiction, conflict of jurisdictions). conflict of jurisdictions).

PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW CONFLICT OF LAWS SUPRANATIONAL LAW - rights between several nations or - nations and the citizens or subjects of other nations - conflicts between private persons, natural or juridical, having relationship to more than one nation - the law of supranational organizations (e.g. EU law) Compare...

Areas of law potentialy involving conflict of laws: 1.Law of obligations (contracts, torts) 2.Property and succession (property inter vivos, succession, matrimonial property relations) 3.Family law (marriage, divorce, children)

Case example A who has a French nationality and residence in GermanyA who has a French nationality and residence in Germany B who has American nationality, domicile in Arizona, and residence in AustriaB who has American nationality, domicile in Arizona, and residence in Austria C a Swiss national, owns property in SwitzerlandC a Swiss national, owns property in Switzerland a) A corresponds with B over the internet. They agree the joint purchase of land in Switzerland, currently owned by C, but they never physically meet. a)They execute initial contract documents by using mail, followed by a postal exchange of hard copies. b)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.

Matrimonial cases... POTENTIAL PROBLEMS -the place of marriage ≠ the territory where divorce was filed -the parties’ nationalities and residence do not match -there is property in a foreign jurisdiction -parties have changes residence several times during the marriage

Important expressions - conflict of laws – private international law -discordance between the laws -the resolution of the dispute -judicial jurisdiction -recognition of foreign judgements -territorial diversity of legal systems -international / interstate / intercantonal conflicts... -the choice of law -foreign element (in a case)

Translate the following sentence. U užem smislu riječi, sukob zakona podrazumijeva sukob između zakona koji pripadaju različitim državama radi rješavanja konkretnoga slučaja koji može biti, po različitim osnovama, riješen primjenom zakona dviju ili više država. Pravni leksikon Leksikografskog zavoda Miroslav Krleža

Zakon o rješavanju sukoba zakona s propisima drugih zemalja u određenim odnosima, NN 53/91, 88/01  Glava prva OSNOVNE ODREDBE  Članak 1. Ovaj zakon sadrži pravila o određivanju mjerodavnog prava za statusne, porodične i imovinske odnosno druge materijalnopravne odnose s međunarodnim elementom. Ovaj zakon sadrži i pravila o nadležnosti sudova i drugih organa Republike Hrvatske za raspravljanje odnosa iz stavaka 1, ovog članaka, pravila postupka i pravila za priznanje i izvršenje stranih sudskih i arbitražnih odluka. Read part II of this law “APPROPRIATE LAW” and make notes about different situations and the rules about the applicability of law refering to them (e.g. Custody, contract, marriage). propisima-drugih-zemalja-u-odre%C4%91enim-pitanjima