Introduction to Polish Private International Law 2nd Classes Dr. Mateusz Pilich Chair of Int’l Private and Trade Law, University of Warsaw

Why to Apply Foreign Laws? What if the civil or commercial court would apply only its own substantive law (lex fori)? What if the civil or commercial court would apply only its own substantive law (lex fori)? Justifications for other solutions, e.g. Justifications for other solutions, e.g. comitas gentium – peaceful coexistence of states requires that the court respect foreign sovereignty as much as possible comitas gentium – peaceful coexistence of states requires that the court respect foreign sovereignty as much as possible 'acquired rights' doctrine (also the EU law 'country of origin' principle) – we protect parties’ rights and/or status 'acquired rights' doctrine (also the EU law 'country of origin' principle) – we protect parties’ rights and/or status

Blueprint of the History & Development of Private International Law

Old School of Statutes Group of mediaeval and early-modern Roman law researchers (until the mid 19th century) Group of mediaeval and early-modern Roman law researchers (until the mid 19th century) Most of early statutists came from Italy and France Most of early statutists came from Italy and France Later the most eminent lived in the Netherlands (Johannes Vöet, Ulrik Huber) Later the most eminent lived in the Netherlands (Johannes Vöet, Ulrik Huber) Ulrik Huber Ulrik Huber Statute = a particular law as in force in a country, opposed to the universal private (Roman) law Statute = a particular law as in force in a country, opposed to the universal private (Roman) law Tried to derive the rules of the conflict of laws from the ancient texts (Corpus Iuris Civilis) Tried to derive the rules of the conflict of laws from the ancient texts (Corpus Iuris Civilis) They used a typical scholastic method of exegesis, not a modern way of the legal interpretation They used a typical scholastic method of exegesis, not a modern way of the legal interpretation Justification of the application of the territorial law to foreigners Justification of the application of the territorial law to foreigners

Friedrich Karl von Savigny Great German private (civil) lawyer of the 19th century Great German private (civil) lawyer of the 19th century 8th Part of his System of the Modern Roman Law (Berlin 1840) contained the lecture of the PIL 8th Part of his System of the Modern Roman Law (Berlin 1840) contained the lecture of the PIL ‘Invented’ the original (European) method of the conflict of laws ‘Invented’ the original (European) method of the conflict of laws The concepts of the ‘seat of a legal relationship’ (Sitz des Rechtsverhältnisses), the ‘international community’ of equal national laws The concepts of the ‘seat of a legal relationship’ (Sitz des Rechtsverhältnisses), the ‘international community’ of equal national laws Abstract rules the object of which consists only in designating the law of the country applicable to the given private law relationship (e.g. a contract shall be subject to the law of the country where the debtor is obliged to perform) Abstract rules the object of which consists only in designating the law of the country applicable to the given private law relationship (e.g. a contract shall be subject to the law of the country where the debtor is obliged to perform)

Pascuale Stanislao Mancini Italian researcher, practising lawyer and also a politician in the era of Risorgimento Italian researcher, practising lawyer and also a politician in the era of Risorgimento Author of the first modern codification on the Private International Law (part of the Civil Code for the Kingdom of Italy of 1865) Author of the first modern codification on the Private International Law (part of the Civil Code for the Kingdom of Italy of 1865) Central notion of his whole system was the nationality (personal status, family law, successions) Central notion of his whole system was the nationality (personal status, family law, successions) Inspired the efforts in order to codify the PIL in one or several international conventions (beginning of the HCCH  see next slide) Inspired the efforts in order to codify the PIL in one or several international conventions (beginning of the HCCH  see next slide) One of the founding fathers of the International Law Institute – a private law association gathering high rank researchers of the international (public & private) law One of the founding fathers of the International Law Institute – a private law association gathering high rank researchers of the international (public & private) law

Hague Conference of Private Int’l Law (HCCH) One of leading international (intergovernmental) organizations developing the PIL and International Civil Procedure One of leading international (intergovernmental) organizations developing the PIL and International Civil Procedure A posthumous child of Mancini, originally a series of diplomatic conferences (Hague sessions) held since 1893 (  Tobias Asser), formally founded in 1955 under the Statute of 1951 (7th Session) A posthumous child of Mancini, originally a series of diplomatic conferences (Hague sessions) held since 1893 (  Tobias Asser), formally founded in 1955 under the Statute of 1951 (7th Session) 74 members, incl. Poland and the European Union 74 members, incl. Poland and the European Union Selected output: Selected output: 1956 Maintenance Towards Children Convention (later replaced by: 1973 Maintenance Obligations Convention, 2007 Maintenance Protocol) 1956 Maintenance Towards Children Convention (later replaced by: 1973 Maintenance Obligations Convention, 2007 Maintenance Protocol) 1961 Protection of Infants Convention (later replaced by the 1996 Protection of Minors Convention) 1961 Protection of Infants Convention (later replaced by the 1996 Protection of Minors Convention) 1961 Form of Wills Convention 1961 Form of Wills Convention 1971 Traffic Accidents Convention 1971 Traffic Accidents Convention 1961 Abolishing of Legalization of Public Documents Convention 1961 Abolishing of Legalization of Public Documents Convention 1980 Int’l Children Abduction Convention 1980 Int’l Children Abduction Convention

American Conflict of Laws US law of conflict of laws: a diverging world of legal notions US law of conflict of laws: a diverging world of legal notions Probable reasons: Probable reasons: Impact of the doctrine of territorialism (Huber, Story) Impact of the doctrine of territorialism (Huber, Story) Trends towards consolidating problems of jurisdiction and law applicable, the prevalence of lex fori Trends towards consolidating problems of jurisdiction and law applicable, the prevalence of lex fori Most influential theory by Professor Brainerd Currie ( ) Most influential theory by Professor Brainerd Currie ( ) Author of ‘Selected Essays on the Conflict of Laws’ (1963) Author of ‘Selected Essays on the Conflict of Laws’ (1963) Doctrine of governmental interests – courts have to weigh opposing interests of various coutries in having their laws applied to a case Doctrine of governmental interests – courts have to weigh opposing interests of various coutries in having their laws applied to a case Material considerations necessary in order to apply foreign laws Material considerations necessary in order to apply foreign laws Values derived from the letter of substantive law decide Values derived from the letter of substantive law decide Importance for the European countries, impact on the PIL development (cf. Volken, 1 YPIL [1999] 85 ff) Importance for the European countries, impact on the PIL development (cf. Volken, 1 YPIL [1999] 85 ff)

Methodology of the Conflict of Laws

Structure of the Conflicts Law Rule Conflict of laws taken as the choice of law (and not the jurisdiction): focus on the indirect legal regulations Conflict of laws taken as the choice of law (and not the jurisdiction): focus on the indirect legal regulations Purpose: NOT TO SOLVE THE CASE, just to give the law applicable to a distinct questions Purpose: NOT TO SOLVE THE CASE, just to give the law applicable to a distinct questions Example – Article 11 (1) of the 2011 Law on PIL: Example – Article 11 (1) of the 2011 Law on PIL: A natural person’s legal capacity and capacity to perform juridical acts (legal transactions) is governed by the law of his or her nationality "Law of one's nationality" – POINT OF CONNECTION "Law of one's nationality" – POINT OF CONNECTION "Legal capacity", "Capacity to act" – OBJECT OF THE CONNECTION "Legal capacity", "Capacity to act" – OBJECT OF THE CONNECTION

Point of Connection (Connecting Factor) The part of the confict law rule designating the law applicable The part of the confict law rule designating the law applicable In a typical case: an abstract character In a typical case: an abstract character They localize the object of connection within the sphere of application of certain national law (e.g. Polish, German, Swiss one, etc.) They localize the object of connection within the sphere of application of certain national law (e.g. Polish, German, Swiss one, etc.) Based on personal, objective, or subjective criteria Based on personal, objective, or subjective criteria Personal connecting factors: Personal connecting factors: nationality of a natural person nationality of a natural person domicile (ordinary residence) of a natural person domicile (ordinary residence) of a natural person habitual residence of a natural person habitual residence of a natural person seat of a moral person seat of a moral person place of incorporation of a moral person place of incorporation of a moral person Objective connecting factors, e.g. the situation of the immovable property or tangible object, the place of conclusion of marriage, etc. Objective connecting factors, e.g. the situation of the immovable property or tangible object, the place of conclusion of marriage, etc. Subjective connecting factors – based on the will of a person = choice of law by the interested party/-ies Subjective connecting factors – based on the will of a person = choice of law by the interested party/-ies

Object of Connection (Legal Category) Relationship or status which is to be subject to a given law applicable Relationship or status which is to be subject to a given law applicable Examples: Examples: "legal incapacitation" (Article 13 PILA) "legal incapacitation" (Article 13 PILA) "name and surname of a natural person" (Article 15 PILA) "name and surname of a natural person" (Article 15 PILA) "legal person" (Article 17 PILA) "legal person" (Article 17 PILA) "prescription of a claim" (Article 16 PILA) "prescription of a claim" (Article 16 PILA) "ownership and other absolute property rights" (Article 41 PILA) "ownership and other absolute property rights" (Article 41 PILA) "ability to conclude the marriage" (Article 48 PILA) "ability to conclude the marriage" (Article 48 PILA) Terms reminding the typical institutions of private (civil & commercial) law, usually borrowed from the vocabulary of the legislator's own legal system (here: Polish private law) Terms reminding the typical institutions of private (civil & commercial) law, usually borrowed from the vocabulary of the legislator's own legal system (here: Polish private law) Obvious problems of conceptual and systematic differences between private laws of countries  conflict of characterizations Obvious problems of conceptual and systematic differences between private laws of countries  conflict of characterizations

Various Types of PIL Rules Basic division: Basic division: unilateral conflicts law rules (e.g. in German: einseitige Kollisionsnormen, in French: normes de conflit unilatérales) – they specify only the lex fori (i.e. the court's own law) as applicable unilateral conflicts law rules (e.g. in German: einseitige Kollisionsnormen, in French: normes de conflit unilatérales) – they specify only the lex fori (i.e. the court's own law) as applicable bilateral conflicts law rules (e.g. in German: allseitige Kollisionsnormen, in French: normes de conflit bilatérales) – they may specify any law of any country of the world as applicable (i.e. either lex fori or a foreign law – and hence called "bilateral") bilateral conflicts law rules (e.g. in German: allseitige Kollisionsnormen, in French: normes de conflit bilatérales) – they may specify any law of any country of the world as applicable (i.e. either lex fori or a foreign law – and hence called "bilateral") Complex rules of PIL: Complex rules of PIL: Equal alternative connecting factors: several laws may be applied on an equal footing (e.g. Article 1 of the 1961 Hague Form of Wills Convention) Equal alternative connecting factors: several laws may be applied on an equal footing (e.g. Article 1 of the 1961 Hague Form of Wills Convention)Article 1 of the 1961 Hague Form of Wills ConventionArticle 1 of the 1961 Hague Form of Wills Convention Subsidiary alternative connecting factors: basic connection accompanied by a 'weaker' alternative in order to keep a legal relationship valid (e.g. Article 49 PILA) Subsidiary alternative connecting factors: basic connection accompanied by a 'weaker' alternative in order to keep a legal relationship valid (e.g. Article 49 PILA) „Ladder" of connecting factors: if the preceding connecting factor does not fit the facts of the case, the next one steps in (e.g. Article 51 PILA) „Ladder" of connecting factors: if the preceding connecting factor does not fit the facts of the case, the next one steps in (e.g. Article 51 PILA)

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