Class 2: Introduction Part II

Question 1

What are the relevant questions when faced with a PIL case?

Answer 1

1. Which court has jurisdiction?
2. Which law will the judge apply?
   
   1. Gleichlauf? = own laws
   2. No Gleichlauf? = the judge will apply a law that is different than their own law
3. Recognition and enforcement: How do I make sure that the judgement I have is recognized and enforced in the jurisdiction where it matters?

Question 2

What is the beauty of PIL?

Answer 2

• Beauty of PIL: a whole range of potential jurisdictions opens up to you & applicable law as well → PIL = tool: you can get to a court that is more attractive to you.
• Eg. you live in a state where same sex marriage is not allowed: can you go to Belgium to get married, how can I make sure that my own authorities recognize this marriage.
• Eg. English law for torts.

Question 3

What is the link between corporate social responsibility and PIL?

Answer 3

• Question = to what degree should PIL land to advance societal interests such as environmental protection, human rights protection,…
• Eg. UK Supreme Court judgement of Nigerian claimants pursuing Shell to apply English law to environmental and human rights issues committed by Shell in Nigeria. Difficult to attain a case in Nigeria so they try to go to another state.

Question 4

Are courts flexible in PIL?

Answer 4

Courts are now quite flexible in applying laws that are not the laws of their own state and now authorities are also quite comfortable recognizing and enforcing judgement from other states.

Question 5

What is party autonomy?

Answer 5

Party autonomy = in an international litigation, you are happy for parties to choose between a certain amount of courts that would like to hear their case, especially in commercial, business relationships.

Question 6

What is regulatory competition?

Answer 6

States purposely design and use their laws and courts for direct investment. A state is aware of the reputation of the content of the law and the way that the international business community perceives the states. Pro-actively use it to attract cases to your jurisdiction.

Question 7

What are ICCs?

Answer 7

• As a result of party autonomy and regulatory competition: introduction of ICCs = International Commercial Courts:
  
  • Eg. China made an ICC because they want to make a statement that they are open for business.

Question 8

What is the personality principle in PIL?

Answer 8

• Personality principle = the laws of your home state follow you wherever you go:
  
  • Still the case for an important part of family law: eg. marriage.
• Now this is the exception but it was standard practice in Roman times: praetor perigrini: spoke justice amongst the foreigners where he would speak the foreign laws.
  
  • Evolution where they also started to apply Roman laws to non-Romans, because of the inter-marriages etc.

Question 9

What did Friedrich von Savigny emphasize?

Answer 9

• Friedrich von Savigny: emphasized applicable law and the solely approach to applicable law and the conceptual relevance of applicable law issues.

Question 10

What can be reasons for choosing a certain applicable law?

Answer 10

• Language: you need to understand the proceedings.
• Interpretation: The way in which a judge applies the laws: even if the law is the same, a different judge will apply it differently.
  
  • Eg. English law vs. civil law wrt contract interpretation.
• A particular set of rules will be much more attractive to you: eg. damages in the US.
• Procedure
• Speed and complexibility
• Availability of legal aid
• Jury or not
• Knowledge of thd judge: it can be good to seize a judge that is clueless

Question 11

What is lex contractus?

Answer 11

• The law that applies to your contract, the applicable law.

Question 12

Difference between English law and civil law when it comes to contract law?

Answer 12

• English law: what is attractive is that what you write on paper, that is what you have agreed upon → apply the contracts as how they are written down.
• But in civil countries: judges will look at good faith, judges will take into account the whole particular contractual context = opposite of the way that English law works, where now slowly they are adopting the good faith, ex aequo et bono.
  
  • Civil judges will look at the intention of the parties, look beyond the formal contractual formulation → this is one of the reasons why you would want to go either to an English judge or a civil judge.

Question 13

Why is procedure one of the reasons for choosing the applicable law?

Answer 13

• Procedure is always subject to lex fori.
  
  • Eg. Discovery: part of procedure and a very important part because of the potential evidence. In common law countries: much easier to ask for the evidence of the counterparty before you start a claim: eg. a German court would not give medical information but a US court would.
  • Aim of litigation: subtract the discovery and they force the other party into a settlement = evidence shopping.

Question 14

What is a fishing expedition?

Answer 14

Aim of litigation: subtract the discovery and they force the other party into a settlement = evidence shopping.

Also called fishing expedition = you hope to find some piece of information which could be relevant

Question 15

What is the Italian torpedo?

Answer 15

• Italian torpedo: very successful litigation strategy, particularly in IP litigation.
  
  • If you were an alleged infringed, you would run to an Italian court to try him to declare you had not infringed the IP right.
• If there is an EU court that has been seized = all other member states must wait. This is a very effective way to slow down proceedings and frustrate the case of your opposing party (works if you fulfill all the conditions of lis alibi pendens).
• Even if the Italian court does not have jurisdiction, all other MS will have to wait until they declare that they do not have jurisdiction = this torpedoes the bona fide case of the opposing party.

Question 16

What is the difference in the interpretation of procedure in one state vs. another?

Answer 16

Procedure in one state might not fall under procedure in another state:

• Eg. prescription periods, statues of limitations = period in which you are allowed to bring a case (not in criminal law because PIL does not concern itself with public law).
• Statutes of limitation: considered substantive matter in a lot of jurisdictions, so not procedural (which is subject to lex fori).

Question 17

Why is the difference in interpretation in procedure relevant?

Answer 17

This is important for when you try to harmonize → you need to make sure that all states understand what you mean when you say procedure. If you have divergence → forum shopping, depending on your interest to delay or not delay certain cases.

Question 18

What is third party financing?

Answer 18

Costs of procedure: important consideration, certainly if the losing party will cover your costs if you are successful. In Belgium: only recently and there is a cap that depends on the complexity but you will never meet the actual costs of the procedure.

Cost assessment of third party financing: a third party who is going to finance your suit but they take a certain percentage if you win the case.

• This is not allowed in all jurisdictions.

Question 19

When is litigation won and what is the consequence of this?

Answer 19

If we add up all those elements, it becomes clear that a litigation is won the very moment the jurisdictional stage is decided → can also be an important incentive for the parties to settle.

Question 20

What did von Savigny say about applicable law?

Answer 20

Most important step = applicable law stage: each legal relationship, one should look or identify the applicable law that substantively by its nature is ought to apply to this legal relationship.

Each legal relationship has its natural seat = natural Sitz.

Question 21

What is the pigeon hole analogy?

Answer 21

Pigeon hole analogy: the judge is the post master and Von Savigny says = qualification: you need to label correctly the legal relationship.

Then, you pigeon hole it, put it in a box → leads to lex voluntatis: whatever law you wanted to apply to the case, is the one that will apply to the case.

You place a certain tag on a private law situation = qualification process → leads to the connecting factor = always in latin and in abstract.

Question 22

What are 2 examples of the pigeon hole analogy?

Answer 22

• Example: marrying at 14 = substantive conditions to getting married → lex patriae: the law of your nationality.
• Example: tort: lex locus delicti commissi = the law of the place where the delict was committed.

Question 23

What is lex voluntatis?

Answer 23

• Lex voluntatis* = the law that the parties have chosen.
• The law that you get is the law that applies when applying the connecting factor. The applicable law depends on the factual circumstance. The connecting factor is an abstract rule.

Question 24

What has survived and what has not survived from Von Savigny?

Answer 24

• Not survived: the natural process, the idea that there a natural Sitz to each private law relationship:
  
  • Where it still applies: eg. contracts for real estate, you cannot just chose another set of laws because it is connected to the territory where the real estate is situated.
• The qualification has survived: look at the facts and qualify the type of applicable law.