1. Private International Law Sciences Po Paris Spring 2017
Overview and sources
Giuditta Cordero-Moss, Ph.D., Dr.Juris
Professor, Oslo University

2. The importance of the closest connection
Two Norwegian ships collide in English waters
Dispute between ship owners before Norwegian courts
There are connections both with English and Norwegian law
Individualising method: discretionary choice of Norwegian law
General conflict rule: exception of common habitual residence: Norwegian law

3. PIL’s important feature(1): closest connection
General conflict rules
Discretionary rules
Clear and general criteria are based on evaluation of which criteria reflect closest connection in situations of the kind at hand
Should the general and objective criteria give an unacceptable result in the case at hand, possibility for restricted exceptions
Evaluation of all circumstances of the specific case may reveal closest connection

4. Closest connection is not necessarily the court’s own law
Two Norwegian ships collide in English waters
Dispute between ship owners before English courts
There are connections both with English and Norwegian law
General conflict rule: exception of common habitual residence: Norwegian law
Individualsing method: risk of homeward trend

5. Closest connection does not override other conflict rules
Contract between an Italian and a Norwegian party
Contract contains a governing law clause choosing English law
Parties’ choice is a conflict rule
Closest connection is irrelevant

6. Summary
Closest connection is the principle inspiring connecting factors
Closest connection does not justify overriding other connecting factors unless the restrictive criteria for exceptions are met

7. The importance of predictability
Norwegian distributor
Italian producer
Claim is 6 years old
Norwegian law: claim is time barred
Italian law: claim is not time barred
Shall you advise the creditor to claim full payment or to settle?
The answer depends on the choice of law

8. PIL’s important features (2): Predictability
General conflict rules
Discretionary rules
Choice is made on the basis of clear and general criteria
Application of clear and general criteria is predictable
Choice is made on the basis of a discretionary evaluation of all circumstances of the case
Exercise of discretion in unpredictable

9. The importance of harmonising choice of law
Is the claim brought before Italian courts, the distributor’s law applies
Is the claim brought before Norwegian courts, the producer’s law may apply
Under harmonised regime: distributor’s law
Under individualising method: uncertain
Forum shopping
If conflict rules are harmonised, possibility for forum shopping is reduced

10. PIL’s important features (3): Harmonisation
General conflict rules
Discretionary rules
Clear and general criteria are applied uniformly in all jurisdictions
Exercise of discretion may vary from country to country

11. Private international law is (originally) national
Branch of each country’s law determining:
The scope of jurisdiction of that country’s courts
The scope of application of that country’s law
PIL may also determine:
Which country’s law is applicable by that country’s courts, if their own law is not applicable
What is international is not the law, but the legal relationship to which PIL applies

12. Harmonised PIL in the EU http://eur-lex. europa
EU regulations replace national PILs on:
Choice of law for contracts
Choice of law for torts
Jurisdiction and enforcement of civil judgments
Cross border insolvency …
No EU (direct) conflict rules on company law, property,…

13. Harmonised interpretation of EU PIL
EUCJ has authority to interpret EU sources of PIL
EUCJ shall interpret the various sources consistently
Many concepts of EU PIL are interpreted autonomously
E.g.: the concept of contract (C-34/82, C-26/91, C-51/97, C-12/15, C-196/15, C-265/02, C-334/00)
Some are not
E.g.: the concept of domicile (art 62 Brussels I)

14. Harmonisation beyond EU
Hague conference on private international law
Convention on choice of court
Convention on apostille
Convention on child abduction
Convention on adoption …
Principles on choice of law for contracts