Class 1: Introduction Flashcards
1
Q
What is private international law?
A
- Deals with issues arising in cross border civil and commercial legal relationships
- It is not international because the sources are international and it does not deal with the relationships between states.
- Vast amount involve private parties, citizens or corporations.
2
Q
Which elements have to be present for PIL to apply?
A
- International element: in the factual matrix, there has to be an international element.
- Private refers to the subject matter: all concern private law issues:
- Contract law, family law, inheritance,…
- PIL deals with how those relationship work in an international context.
3
Q
What is the consequence of having an international element in your factual matrix
A
- You can dip into and turn to courts and jurisdictions that you otherwise would not be able to do -> you can also use different laws that are different than your home jurisdiction.
- It is an opportunity to dip into legal systems that are not the legal systems of home jurisdictions.
- Consider actively: how can you, in situations that are entirely domestic, how can you engineer an international element, that does fit in an international context so you can move beyond the jurisdiction of your domestic state.
4
Q
What is not private international law?
A
- It is not: Public international law, international criminal law.
- Also not civil procedure but there is a clear relationship with civil procedure.
5
Q
What are the sources of PIL?
A
- National sources, combination of statutes and case law.
- EU: absolute massive amount of EU sources that impact on PIL but also important amount of international treaties (Conventions Hague), serves as an informal way to harmonize the various issues.
6
Q
What are the 3 steps in PIL?
A
- Forum: which courts can hear a case = jurisdiction: Which court can you go to to seize your case?
- Applicable law: lex causae; which law applies, which is the governing law?
-
Recognition and enforcement: once you have a judgement = how can you enforce it in other jurisdictions?
- Horizontal process: you need cooperation between the different jurisdictions for rules of evidence, service of documents etc.
7
Q
What is SLAPP?
A
- Strategic Lawsuit Against Public Participation
- SLAPP = the threat of saying to a journalist → if you publish that, then I will be suing you in one of those places → that will make people step back from publishing things:
- Negative consequences for journalistic freedom.
8
Q
What was the Beckham case?
A
- Woman who claimed she had been sleeping in the US = fabrication: Publisher: US publisher with a US corporate base but also mother company (German corporation) involving a Croatian national (the woman in question) and the other party (US residents with UK nationality).
- Libel, invasion of privacy -> Gleichlauf!
- Huge difference in England (claimant friendly) and the US (defendant friendly because you have to show malicious intent = express intention to harm and cause emotional distress, state law and not federal).
- Beckham could not establish malicious intent but they also sued in Germany and they won. They had no standing in the UK.
9
Q
What is Gleichlauf?
A
- Court applies its own laws: eg. Belgian court applies Belgian laws.
- Concurrence between the jurisdiction and the law that it applies: does not apply in many cases, it does in libel law.
10
Q
A
11
Q
What is forum shopping?
A
Where you shop for the jurisdiction that is most attractive to you.
Eg. divorce tourism: very well known phenomenon to look for jurisdictions that are better for financially worse party.
Eg. Ryanair that wants to remain with Irish labour laws instead of Belgian labour laws.
12
Q
What was the Kate Middleton’s privacy case?
A
- Privacy law: but English law did not have a suit at that point –> they sued in France because there’s Gleichlauf and the French court found that there had been an invasion of privacy.
- But: problem with recognition and enforcement -> you need to be able to enforce it against the internet but that is nearly impossible (Streisand effect)
13
Q
What was the case Joseph Weiler in the Dock?
A
- German academic had written a book written by a professor, who had Israeli and French nationality and the book review was published in a journal edited by Joe Weiler:
- Joe Weiler = US national, Jewish nationality and who at the time lived in NYC and Firenze, where he was a director.
- Where would the professor go to in the case of defamation?
- Ordinarily: she would be able to sue in Israel
- US because that is where Joe Weiler lives
- But she sued in France → forum shopping! Defamation is here also a criminal wrong, contrary to many common law countries.
- So here, the juge d’instruction would take over the whole case.
- Similar case: Agent Orange = toxic substance in Vietnam to make the forest disappear. Adopted by a French family so French nationality and she is suing a number of US firms in France, simply on the basis of her French nationality, even though no relevance to France.
14
Q
What is parochial jurisdiction?
A
Parochial, excessive or exorbitant jurisdiction:
- A court establishes jurisdiction, so feels competent to judge the case, but very little anker points with the actual case (see Vietnam case)
15
Q
How does forum shopping work with insolvency?
A
- Variety of challenges, often problems with 3rd step: recognition and enforcement.
- Case Sabena v. Swissair: Swissair had to pay but the Swiss court refused to recognize the insolvency judgement of the Brussels Court of Appeal.
