1. PRIVATE INTERNATIONAL LAW Conflict of Laws

2. §§ §§
? §

3. Private International Law Determines
The competent court
The applicable law
in international relations between private parties

4. Sources of Private International Law
1. The contract between the parties (reference provision)
2. International treaties
3. Private International Law of different countries
4. Trade usages, Lex Mercatoria

5. Lex Mercatoria
consists of common trade practices and norms of customary law among international trading partners.
It dates back to the Renaissance. Its main principles are that a merchant must deal in good faith, contracts are binding and resorting to arbitration tribunals .

6. CHOICE OF FORUM

7. Forum is
Municipal court
Arbitration tribunal

8. Arbitration tribunal
The parties can agree to have an Arbitration Institution solve their legal disputes
Provides for a written Arbitration Agreement
The institution sets the rules, conducts proceedings and manages the administrative aspects
The arbitration award is binding
New York Convention (1958)
= The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards

9. Private International Law§§ §§
CONVENTION
CONTRACT
Reference
provision §§
Private
International Law

10. The forum can be appointed by
1. Contract between the parties

11. Forum shopping Forum non conveniens
= the claimant’s tendency to choose the forum he expects will offer best prospects for a successful lawsuit
Forum non conveniens
=> a court may refuse to exercise its power to hear a case when doing so is either inconvenient or unfair

12. The forum can be appointed by 2. International Conventions:
Brussels I Regulation
Adopted by all of the EU member states but Denmark
Successor of Brussels Convention, still applicable in Denmark
Lugano Convention (1988)
Applied by the other European countries
=> The signatory states have agreed to recognize and enforce each other's court rulings

13. => The forum is
1. The court the parties have agreed on in writing or which otherwise can be derived from their practices or
2. The court of the place of domicile of the defendant, unless
3. The defendant wishes to use his opportunity to bring the lawsuit to a different court.

14. The forum can be appointed by
3. National jurisdiction provisions

15. Tresbien SARL from France contracted to by goods from German Allesgut GmbH.
The buyer received and paid for the delivery. However, the seller claims that the paymet was delayed and claims for compensation. The buyer disagrees. What to do?

16. CHOICE OF LAW

17. §§ §§
? §

18. Private International Law§§ §§
CONVENTION
CONTRACT
Reference
provision §§
Private
International Law

19. CONTRACTUAL CHOICE OF LAW
Referece clause is always possible in business contracts
Must be explicit or otherwise clear
The applicable law must have a connection to the case

20. Regardless the reference provision
Procedural law is the law of the forum (lex fori)
In consumer trade, the minimum requirements of law of the consumer’s country
In employment contracts, limitations to contractual freedom

21. A country may refuse to recognize foreign law being in conflict with its mandatory law
Ordre Public
= the public policy of a country, its mandatory law and basic legal principles

22. STATUTORY CHOICE OF LAW
TRADE IN MOVABLES
OTHER CONTRACTS
The Hague International Sales Convention
1955
The United Nations Convention on Contracts for the International Sale of Goods
CISG
1980
The Rome Convention on the law applicable to contractual obligations

23. If both parties come from CISG signatories
HAGUE CONVENTION
CISG
ROME CONVENTION
Applied
If the case is brought before a court in:
Belgium
Denmark
Finland
France
Italy
Norway
Switzerland
Sweden
Niger
And the business locations of the parties are NOT in the CISG signatory states
If both parties come from CISG signatories Or
the Hague Convention, the Rome Convention or another international connection rule
provides
In other than contracts of trade in movables
If the case is brought before a court in the EU

24. 1. The Hague Convention
According to the Hague Convention, the applicable law is:
1. The law stipulated by the Choice of Law Clause in the contract
2. The law of the country of the seller, unless the order was taken in the country of the buyer or in the country of business of the buyer

25. Not applied to strongly national issues such as
2. The Rome Convention
Not applied to strongly national issues such as
Legal competence
Bills of exchange, cheques, promissory notes
Family law
Procedural law- arbitration agreements
Law on foundations, associations, companies
Procedural law

26. Excludes renvoi Honors "ordre public"
=> the choice of law provisions of the country specified by the Convention shall not be applied
Honors "ordre public"

27. According to the Rome Convention, the applicable law is:

28. Determined by the choice of law clause in the contract
General provisions:
Determined by the choice of law clause in the contract
The law of the country with which the contract has the most significant relationship
=> the country where the party, who is to effect the performance which is characteristic of the contract, has his habitual residence, unless
it appears from the circumstances as a whole that the contract is more closely connected with another country

29. Trade of immovable property
Specific provisions:
Trade of immovable property
=> The law of the country where the immovable property is situated (Lex Rei Sitae)
Carrier
=> the law of the country where the carrier has his principal place of business, unless
it appears from the circumstances as a whole that the contract is more closely connected with another country
Consumer trade
=> the minimum protection of the mandatory rules of the consumer’s country’s law
if the seller knew that the buyer is a consumer

30. Employment contracts but
1. The law of the contract
but
the choice of law shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable in the absence of choice
2. If no choice of law was made, the law of the country where the employee habitually carries out his work in performance of the contract
3. If no such country can be appointed, the law of the country in which the place of business through which he was engaged is situated
Unless it appears from the circumstances as a whole that the contract is more closely connected with another country

31. 3. The CISG

32. transaction (each party’s
SCOPE OF THE CISG
Is it an International
transaction (each party’s
place of business is in
a different country)?
YES
YES
YES
Have both
countries
ratified
the CISG?
Is the
contract a
sale of
goods
transaction?
Is it a
commercial
(merchant-
to-merchant)
transaction?
Did the
parties
opt-out of
the CISG
in a choice
of law
clause? NO
YES
CISG
governs
Modified from:
Richards, E
Law for global Business.
Irwin, USA

33. transaction (each party’s
SCOPE OF THE CISG
Is it an International
transaction (each party’s
place of business is in
a different country)?
YES
YES
YES
Have both
countries
ratified
the CISG?
Is the
contract a
sale of
goods
transaction?
Is it a
commercial
(merchant-
to-merchant)
transaction?
Did the
parties
opt-out of
the CISG
in a choice
of law
clause? NO
YES NO
Has the
country with
the closest
connection to
the contract
ratified
the CISG?
CISG
governs NO
YES
Does the
ratifying country
exclude the
CISG coverage
unless both
countries
have ratified?
Did the parties opt-in
to the CISG in a
choice of law clause?
Modified from:
Richards, E
Law for global Business.
Irwin, USA
YES

34. transaction (each party’s
SCOPE OF THE CISG
Is it an International
transaction (each party’s
place of business is in
a different country)?
YES NO
YES
YES
Have both
countries
ratified
the CISG?
Is the
contract a
sale of
goods
transaction?
Is it a
commercial
(merchant-
to-merchant)
transaction?
Did the
parties
opt-out of
the CISG
in a choice
of law
clause? NO
YES NO
Has the
country with
the closest
connection to
the contract
ratified
the CISG? NO NO
CISG
governs
YES
Domestic
law
governs NO NO
YES
Does the
ratifying country
exclude the
CISG coverage
unless both
countries
have ratified? NO
YES
Modified from:
Richards, E
Law for global Business.
Irwin, USA
Did the parties opt-in
to the CISG in a
choice of law clause?
YES

35. The contracting parties are located in different signatory states or
The CISG
Is applied if
The contracting parties are located in different signatory states or
The applicable law is that of a country which is a signatory to the CISG
=> CISG will be applied as part of the country's private international law
The parties have agreed to apply the CISG

36. The CISG does not apply to sales
Of goods bought for personal, family or household use unless the seller neither knew nor ought to have known that the goods were bought for such use
On execution or otherwise by authority of law
Of stocks, shares, investment securities, negotiable instruments or money
Of ships, vessels, hovercraft or aircraft
Of electricity

37. CISG Can be excluded
By a reference provision in the contract
By a reservation of a signatory country

38. Parts of The CISG:
1. Sphere of application and general provisions
2. Formation of a contract
3. Sale of goods
4. Final provisions

39. CONTRACTING STATES (April 4, 2004)
Argentina, Australia, Austria, Belarus, Belgium, Bosnia-Herzegovina, Bulgaria, Burundi,
Canada, Chile, China(PRC), Columbia, Croatia, Cuba, Czech Rep,
Denmark, Ecuador, Egypt, Estonia, Finland, France,
Georgia, Germany, Greece, Guinea,
Honduras, Hungary, Iceland, Iraq, Israel, Italy,
Kyrgystan, Latvia, Lesotho, Lithuania, Luxembourg,
Mauritania, Mexico, Moldova, Mongolia, Netherlands, New Zealand, Norway, Peru, Poland,
Romania, Russian Federation, Saint Vincent & Grenadines, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syria,
Uganda, Ukraine, United States, Uruguay, Uzbekistan, Yugoslavia, Zambia