1. Private International Law Sciences Po Paris Spring 2017
PIL for property law
Giuditta Cordero-Moss, Ph.D., Dr.Juris
Professor, Oslo University

2. Forum – immovable property I
Norwegian buyer
Immovable property in Italy
The buyer does not pay the whole price
Seller sues the buyer to obtain payment
Which court is competent?

3. Forum – immovable property II
Norwegian buyer
Immovable property in Italy
The buyer claims the contract is invalid
Which court is competent?

4. Forum – immovable property III
Norwegian buyer
Immovable property in Italy
The property has a negative easement to prevent blocking the seller’s neighbouring property’s view
The seller seeks a declaratory judgment confirming the extent of the property right transferred to the buyer
Which court is competent?

5. Qualification I
Disputes on performance or validity of a contract having as its object immovable property: relate to contract
Defendant’s forum
Place of performance
Place of branch
Agreed forum

6. Qualification II
Disputes on the existence, extent or performance of a property right (right in rem) in immovable property:
Exclusive forum

7. Forum – property rights in immovables
Art Brussels I, art Lugano: rights in rem in immovable property:
The court of the member state where the immovable property is located
Exclusive jurisdiction

8. Forum – property rights in movables
Norwegian debtor
English creditor
Floating charge over all debtor’s assets
Dispute about floating charge’s validity
Jurisdiction clause in contract: London
Which court is competent?

9. No separate category for movable property
Even though dispute regards property rights, the jurisdiction rules for contract apply
Defendant’s forum
Place of performance
Agreed forum

10. Possible circumvention
Floating charge is forbidden under English law
Parties choose English forum
If English courts apply English law (they should not), they may declare floating charge valid
English decision to be recognised and enforced under Brussels I even though it applied wrong law
Violation of public policy?

11. Choice of law – immovable property I
Norwegian buyer
Immovable property in Italy
The buyer does not pay the whole price
Seller sues the buyer to obtain payment
Which law governs?

12. Choice of law – immovable property II
Norwegian buyer
Immovable property in Italy
The buyer claims the contract is invalid
Which law governs?

13. Choice of law – immovable property III
Norwegian buyer
Immovable property in Italy
The property has a negative easement to prevent blocking the seller’s neighbouring property’s view
The seller seeks a declaratory judgment confirming the extent of the property right transferred to the buyer
Which law governs?

14. Qualification I
Disputes on performance or validity of a contract having as its object immovable property: relate to contract
Party autonomy
Absent parties’ choice: Art. 4.1(c) Rome I: Law of the place where the property is located

15. Qualification II
Disputes on the existence, extent or performance of a property right (right in rem) in immovable property:
Property law

16. Choice of law for property law
PIL for property law not regulated in EU PIL
National PILs:
law of the country where the property is located (lex rei sitae)

17. Choice of law – movable property
Norwegian debtor
English creditor
Floating charge over all debtor’s assets
Dispute about floating charge’s validity
Governing law clause in contract: English law
Which law governs?

18. Qualification
Disputes on the existence, extent or performance of a property right (right in rem) in movable property:
Property law

19. Choice of law for property law
PIL for property law not regulated in EU PIL
National PILs:
law of the country where the property is located (lex rei sitae)
Party autonomy does not apply

20. When the goods move
Norwegian producer sends its raw materials for processing to a Russian plant
According to the tolling agreement, the property of the materials is at all time with the Norwegian producer
The Russian plant uses the materials in its possession as security for a loan it takes with a Russian bank
The Russian bank is not aware that the materials are not the property of the Russian’s borrower
The loan is defaulted, and the Russian bank exercises its security rights on the materials
Which country’s law governs?

21. Producer
Bank
Plant

22. Plurality of relationships
Between the parties to the tolling agreement
Between the parties to the loan agreement
Between the Norwegian producer and the Russian bank

23. Qualification Between the parties to a contract: contract law
Between a party who asserts a property right and a third party: property law

24. Lex rei sitae for movable goods
The law of the country where the thing is located – at what point in time?
At any given time

25. Assignment of claims Norwegian distributor borrows money in England
As a security, distributor assignes to the lender its claims towards the buyers
Which law governs?

26. Buyers
Which law governs?
Bank
assignment
Distributor
invoices

27. Buyers Bank Distributor Creditors Creditors Which law governs?
assignment
Distributor
invoices
Creditors
Creditors

28. Plurality of relationships
Distributor-buyers
Distributor-financial institution
Buyers-financial institution
Distributor’s creditors-financial institution
Financial institution’s creditors-distributor

29. Qualification Contract law: Property law: (Art. 27.2 Rome I)
Distributor-buyers (Art. 3, 4 Rome I)
Distributor-financial institution (Art Rome I)
Buyers-financial institution (Art Rome I)
Property law: (Art Rome I)
Distributor’s creditors-financial institution
Financial institution’s creditors-distributor