1. CROSS-BORDER PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS IN EUROPE: INTERNATIONAL CONTRACTS AND NON-CONTRACTUAL LIABILITY
Ester di Napoli
LUMSA University, Rome
20 and 21 February 2018

2. Practical information
Presentation of the course
Methodology:
power-point presentations (uploaded online)
interactive lessons (seminars, in-class practical cases’ resolution, discussion of relevant case law, simulations)

3. Practical information
Lessons: Tuesday (14:00-16:00) and Wednesday (8:00-10:00).
Content of the course: The course aims at providing practical knowledge, in order to build a professional competence, in the field of European Private International Law in civil and commercial matters, with regard to the rules concerning jurisdiction, recognition and enforcement of decisions, as well as to uniform conflict-of-law rules on the law applicable to contractual and non-contractual obligations.
Attendance: compulsory, up to three absences allowed (evidence required).
Materials: EU legislative instruments and relevant ECJ case law discussed during the lesson and uploaded online.

4. Practical information
Reference texts (selected pages only):
1. G. Conetti, S. Tonolo, F. Vismara, Manuale di diritto internazionale privato, Giappichelli, 2017;
2. P. Stone, EU Private International Law, Edward Elgar Publishing, 2014, third edition, the following chapters: - Chapter 1 “Introduction”: pp. 3-17; - Chapter 2 “History, outline and scope”: pp ; - Chapter 3 “Domicile”: pp and pp ; - Chapter 4 “Alternative jurisdiction”: pp ; - Chapter 5 “Protected contracts”: pp and pp ; - Chapter 6 “Exclusive jurisdiction”: pp ; - Chapter 7 “Submission”: pp ; - Chapter 8 “Concurrent proceeding”: pp ; - Chapter 10 “Recognition and enforcement of judgments”: pp ; - Chapter 11 “Enforcement procedure”: pp ; - Chapter 12 “The proper law of a contract”: pp ; - Chapter 13 “Contractual issues and exceptions”: pp ; - Chapter 14 “Protected contracts”: pp ; - Chapter 15 “Torts”: pp

5. Practical information
Final exam: 21st March 2018, at 8 h
Written test, multiple choice + resolution of a practical case (duration: 2 h)
If a higher mark is desired, any interested student may ask for an additional oral question
Office hours: at request after lessons’ hours - Professor Hall

6. IS PRIVATE INTERNATIONAL LAW (PIL)?
WHAT
IS PRIVATE INTERNATIONAL LAW (PIL)?
Private International Law vs. (Public) International Law “Purely internal situations” (examples) vs. Cross-border situations (cases featuring one or more foreign element/s)  cases involving the functioning of PIL rules (examples)

7. IS PRIVATE INTERNATIONAL LAW (PIL)?
WHAT
IS PRIVATE INTERNATIONAL LAW (PIL)?
Private International Law aims at coordinating legal systems. It does not solve, substantially, the case at stake, but answers to the following questions: which court/authority is competent to decide?  rules on jurisdiction which law applies?  conflict-of-law rules how does the decision circulates in other States different from the State where the decision was rendered?  rules on recognition and enforcement how to facilitate “administrative” cooperation among national authorities?

8. which court is competent to decide?
rules on jurisdiction
The rules on jurisdiction: object and structure legal situation  head of jurisdiction Example: “As regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated” competence juridictionnelle, jurisdiction and territorial competence lex fori applies to the proceedings (principle of territoriality)

9. conflict-of-law rules
2. which law applies?
conflict-of-law rules
The conflict-of-law rules: object and structure legal category  connecting factor ex officio application conflict-of-law rule  lex causae Example “A contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence”

10. 3. how do decisions circulate in other States?
rules on recognition and enforcement
Intra-European situations (i.e. decisions issued by Member States’ courts/authorities): principle of mutual trust among Member States (public policy exception)  under the “umbrella” of the principle of automatic recognition and free movement of decisions Decisions rendered by extra-European courts  national PIL rules / international conventions.

11. 4. how to facilitate “administrative” cooperation among authorities/agencies based in different States?
Rules on international cooperation facilitating the functioning of the “dialogue” between national authorities/agencies for a certain scope Example Regulation (EC) n. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents): Member States have designated transmitting and receiving agencies to effect the service of judicial and extrajudicial documents.

12. GENERAL PRELIMINARY TOPICS
- Connecting factors / heads of jurisdiction - conflict-of-law rules - characterization / classification - proof (or ascertainment) of foreign law – iura novit curia aliena - renvoi - incidental (or preliminary) questions - public policy (ordre public) - overriding mandatory rules - States with more than one legal systems

13. CONNECTING FACTORS / HEADS OF JURISDICTION
Examples: domicile, habitual residence, nationality, optio iuris, locus commissi delicti, locus rei sitae, locus celebrationis Categorisation of connecting factors: personal /subjective vs. objective legal vs. factual constant vs. variable Alternative vs. «cascading» connecting factors «connecting factor» = «head of jurisdiction»? «domicile» in common law systems

14. ALTERNATIVE HEADS OF JURISDICTION
Article 3 of Regulation n. 2201/2003 («General jurisdiction») «1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State (a) in whose territory: - the spouses are habitually resident, or - the spouses were last habitually resident, insofar as one of them still resides there, or - the respondent is habitually resident, or - in the event of a joint application, either of the spouses is habitually resident, or - the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or - the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there; (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses (…)».

15. «CASCADING» CONNECTING FACTORS
Article 8 of Rome III regulation on the applicable law to divorce and legal separation: «In the absence of a choice ..., divorce and legal separation shall be subject to the law of the State: (a) where the spouses are habitually resident at the time the court is seised; or, failing that (b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seised, in so far as one of the spouses still resides in that State at the time the court is seised; or, failing that (c) of which both spouses are nationals at the time the court is seised; or, failing that (d) where the court is seised».

16. CHARACTERIZATION / CLASSIFICATION
Defining the legal category from the concrete case / determination of the meaning of expressions-legal formulas  defining the connecting factor When does the operation of characterization apply? What is the goal of characterization? Who proceeds to classify a particular legal situation? Approaches to chatacterization: lege fori (by lex fori)– lege causae (by lex causae) No express indication in EU PIL instruments

17. proof (or ascertainment) of foreign law iura novit curia aliena
Principle of iura novit curia Principle of iura novit curia aliena Procedural treatment of foreign law (a question of law or a question of fact?) EU PIL instruments do not say anything Admissible means of proof

18. renvoi
What is the extent of the conflict-of-law rule’s reference to foreign law? Can foreign law be conceived as domestic law or as a legal order as a whole (PIL rules included)? Two types of renvoi: A-­B-­A or A­‐B­‐C­‐D (see article 13 of Law 218/95) i.e. The succession is regulated by the law of the deceased’s nationality at the time of death. inconsistency

19. RENVOI
Renvoi is expressly excluded in EU PIL instruments; see article 20 of the Rome I regulation: “The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law, unless provided otherwise in this Regulation”. However: see regulation n. 650/2012 on international successions (art. 34): “1. The application of the law of any third State specified by this Regulation shall mean the application of the rules of law in force in that State, including its rules of private international law in so far as those rules make a renvoi: (a) to the law of a Member State; or (b) to the law of another third State which would apply its own law No renvoi shall apply with respect to the laws referred to in Article 21(2), Article 22, Article 27, point (b) of Article 28 and Article 30”.

20. incidental (or preliminary) questions
What is an incidental question? Example: status filiationis – succession (principal issue) Article 6 of the l. 218/95 concerning jurisdiction; what about applicable law? Lex causae of the principal issue Lex causae of the incidental issue Lex fori

21. public policy (ordre public)
Role and nature of public policy Protecting the internal harmony «Manifestly contrary» to public policy Consequences of the functioning of the public policy clause Examples from national PIL systems Article 16 Law 218/95: 1. Foreign law shall not be applied if its effects are contrary to public order. 2. In such cases the judge shall apply the alternative foreign law, if any, prescribed by the Italian choice of law rules for the same set of facts. In the absence of such alternative foreign law, he/she shall apply Italian law.

22. overriding mandatory rules
Function and definition of overriding mandatory rules (1966) ‘rules compliance with which is necessary for the protection of the political, social and economic organisation of the country’ Article 17 of Law n. 218/95 Article 9 of Rome I Regulation - uniform provisions on mandatory rules «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» New provisions of the Law n. 218/95 on the unicity of the status of child

23. States with more than one legal systems
Internal conflict-of-law rules different from conflict-of-law rules Article 22 of Rome I Regulation «1. Where a State comprises several territorial units, each of which has its own rules of law in respect of contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Regulation A Member State where different territorial units have their own rules of law in respect of contractual obligations shall not be required to apply this Regulation to conflicts solely between the laws of such units». Examples:  two or more territorial unit: United States of America, United Kindgom, Spain  two or more personal systems: Lebanon, Israel

24. EUROPEAN PRIVATE INTERNATIONAL LAW?
WHY
EUROPEAN PRIVATE INTERNATIONAL LAW?
European Private International Law and (substantial) European Law Sources of Private International Law: 1. International Law (international treaties / conventions) 2. National Law European Private International Law / supranational law (EU regulations and directives)

25. 1. International Law
International convention dealing with PIL in civil and commercial matters take precedence over national law: a) International (bilateral and multilateral) conventions (database ATRIO – Archivio dei Trattati Internazionali Online: itra.esteri.it) e.g Brussels Convention; 1980 Rome Convention; 2007 Lugano Convention b) Commission Internationale de l’état Civil: c) Hague Conference on Private International Law (HCCH):

26. 2. National Law
- Statutory systems: e.g. Legge 31 maggio 1995, n. 218 di riforma del sistema italiano di diritto internazionale privato (Italy); Loi 16 juillet 2004 portant le Code de droit international privé (Belgium); the Serbian Act on The Law on Resolution of Conflict of Laws with Regulations of Other countries (1982/2006); German Introductory Act to the Civil Code (EGBGB); new Hungarian Private International Law Act (Act XXVIII of 2017, in force on 1 January 2018); Spanish Civil Code - Chapter IV (Rules of private international law) - Non-statutory systems: e.g. France

27. 3. EUROPEAN PRIVATE INTERNATIONAL LAW / SUPRANATIONAL LAW
Primacy of EU Law over national law Coordination with international conventions dealing with the same topic Where we were: 1968 Brussels Convention (art. 220 TEC) 1980 Rome Convention (outside the scope of art. 220 TEC) «parallel» Lugano conventions (1988 and 2007) From the Treaty of Amsterdam (1997) ... The so-called process of «Europeanization» of Private International Law Title IV Articles of the EC Treaty 

28. 3. EUROPEAN PRIVATE INTERNATIONAL LAW
… where we are (specific competences attributed to the EU in civil and commercial matters): the Treaty of Lisbon (2009): Title V, «Area of Freedom, Security and Justice» (AFSJ), Article 67 of the Treaty on the Functioning of the European Union (TFEU): ”1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. 2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals. 3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. 4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters”.

29. 3. EUROPEAN PRIVATE INTERNATIONAL LAW
Article 81 of the TFEU: «1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States. 

30. 3. EUROPEAN PRIVATE INTERNATIONAL LAW
 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: (a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; (b) the cross-border service of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States; (g) the development of alternative methods of dispute settlement; (h) support for the training of the judiciary and judicial staff.

31. 3. EUROPEAN PRIVATE INTERNATIONAL LAW
 3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament. The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament. The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision».

32. 3. EUROPEAN PRIVATE INTERNATIONAL LAW
European legislative instruments adopted in the field of judicial cooperation in civil and commercial matters (which has a broad meaning, comprehensive of the field of family law with cross-border implications): - regulation (EC) n. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters («Bruxelles I»), now «subsituted» by regulation (EU) n. 1215/2012 («Bruxelles I bis»); - regulation (EC) 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters; - regulation (EC) n. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility («Bruxelles II bis»); - regulation (EC) n. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents); - regulation (EC) n. 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations ;

33. 3. EUROPEAN PRIVATE INTERNATIONAL LAW
- regulation (EC) n. 861/2007, establishing a European Small Claim Procedure; - regulation (EC) n. 805/2004, creating a European Enforcement Order for uncontested claims; - regulation (EC) n. 1896/2006 creating a European Order for Payment procedure; - regulation (EC) n. 593/2008 on the law applicable to contractual obligations («Rome I»); - regulation (EC) n. 864/2007 on the law applicable to non-contractual obligations («Rome II»); - regulation (EU) n. 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession; - regulation (EU) n. 606/2013 on mutual recognition of protection measures in civil matters; - regulation (EU) n. 655/2014 establishing a European Account preservation order procedure to facilitate cross-border debt recovery in civil and commercial matters («EASO») - regulation (EU) 2015/848 on insolvency proceedings; - regulation (EU) 2016/1103 on matrimonial property regimes; - regulation (EU) 2016/1103 on the property consequences of registered partnerships.

34. A «TWO-SPEED EUROPE»
- The position of UK and Ireland (opting in) – Protocol n The position of Denmark (opting out) – Protocol n Family matters - The enhanced cooperation mechanism (article 326 ff.): Regulation (EU) n. 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation («Rome III») Regulation (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes; Regulation (EU) 2016/1104 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in the matters of the property consequences of registered partnerships.

35. EU private international law: specific questions
- Article 288 of the TFEU: regulations - general application, binding in its entirety and directly applicable in all Member States;
- Uniform / autonomous interpretation (characterization) given by the CJEU (article 267 TFEU);
Incidence of the EU Charter on fundamental rights (mainly in the field of family law);
Towards a «European» public policy?
Towards a «system» of EU PIL?

36. EU PRIVATE INTERNATIONAL LAW
The expressions contained in EU instruments adopted in the field of civil and commercial matters need to be interpreted in a uniform way and consistently among EU regulations («inter-textual interpretation») Example: recital 7of Rome I Regulation «The substantive scope and the provisions of this Regulation should be consistent with Council Regulation (EC) n. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) and Regulation (EC) n. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)»

37. The european e-justice portal
The Portal is maintained by the EU Commission, and it provides information on Member States’ legal systems, case law, in 23 languages. You may also find a lawyer / a notary in another Member State. The Portal is the outcome of the European Judicial Network in civil and commercial matters (EJN-civil), which is a flexible, non- bureaucratic network which brings together national judicial authorities. It aims to simplify and strengthen judicial cooperation between Member States. In operation since 2002, the EJN-civil improves the practical application and implementation of EU civil justice instruments. In such way, it contributes to building bridges between the different justice systems of the Member States and thereby creating mutual trust