Class 3: Introduction Part III

Question 1

What did von Savigny propose?

Answer 1

• Characterization: each private law category has a specific connecting factor that would lead you to the applicable law.
• Problematic: what might be considered a natural connection factor in one jurisdiction, is not at all that in another jurisdiction.

Question 2

What is an example of the problematic nature of characterization?

Answer 2

Eg. lex voluntatis: a lot of states would be happy to have parties choose a law that applies to that contract, other states might be more reluctant to party autonomy.

Question 3

What is the challenge to the qualification exercise?

Answer 3

Important challenge to the qualification exercise: position of the postmaster = who qualifies and puts it into the correct pigeon hole.

• Eg. statute of limitation: part of the procedure (therefore subject to lex fori) or a substantive issue: would be a connecting factor that is attached to the qualification of the main subject matter.

Question 4

Why is it difficult to harmonize European PIL?

Answer 4

• A part of the European private international law that wants to harmonize, insure predictability, engage the harmonization of the qualification because all judges must agree on what is procedure.
  
  • Example: statue of limitation: European legislator: substantive = following the lex causae and not procedural.

Question 5

What is the discussion when it comes to culpa in contrahendo?

Answer 5

Liability you might incur in negotiating a contract = tort or contractual?

• Civil = contractual and common law = tort.
• Lex loci delicti = Von Savigny approach
• European approach: lex locus damni because tort. There is a separate entity in the Rome II regulation on applicable law for torts (also for precontractual liability).

Question 6

Is there a lot of harmonization when it comes to private law?

Answer 6

No, too much divergene when it comes to private law across the MS → makes it quite difficult to find common ground.

There is still some interest in defining a harmonized understanding of what a contract means, what tort means,…

Question 7

What is the DCFR?

Answer 7

DCFR = Draft common frameof reference: scholarly attempt with the European Commission to define a ius commune across private law for categories. Remains just an attempt.

Question 8

What is renvoi?

Answer 8

• Renvoi: if you say that laws apply, do you mean the complete legal regime or simply the mean substantive law?
  
  • Eg. Do you apply eg. Illinois law the way that they apply it?
  • But if it refers back to Belgian law = renvoi au premier degré = reference back also to the whole of Belgian law, including Belgian private international law → could point back to Illinois law and then you get ping pong.
• Renvoi seems like a good idea, but a lot of complications in practice because you might start globe trotting the world of laws:
  
  • Typically: renvoi is excluded.

Question 9

What is Vorfrage?

Answer 9

• Subset of the characterisation concept: Before you can get to identify the applicable law for a particular scenario, it can be necessary to take one step back and discuss the applicable law of an issue that comes before the qualification.
• If you qualify the vorfrage using a subset of qualification, you might open up a completely different set of laws = makes if quite complicated!
• There is a lot of scholarly attention, but in practice = usually the same laws are used: application of the main qualification.

Question 10

What is an example of Vorfrage?

Answer 10

Example: marriage but there might be a discussion of whether a previous marriage has been dissolved. The qualification that needs to be verified → whether the 2 people are in a position to get married.

So, look at divorce law before to check which different applicable law might apply. Do you as a judge qualify this vorfrage using independent qualifications → you apply that qualification exercise depending on the circumstances or do you apply the same law that applies to the main question?

Question 11

History of EU PIL?

Answer 11

• Article 220 EEC: legal basis, very important in EU law because of the principle of attributed powers = EU only has powers that are specifically assigned to it.
• Long time, no legal basis except for art. 220 = introduces a free movement of judgements (5th freedom): it stated that you could enter into negotiation for more cooperation.

Question 12

What is the EEX Treaty?

Answer 12

1968: Brussels Convention for recognition and enforcement = EEX verdrag. This was turned into a regulation: Brussels I: 44/2001. And now regulation 1215/2011 Brussels IA or Recast Brussels regulation.

Question 13

What does the treaty says and has this been translated into EU legislation.

Answer 13

Recap: treaty says we need to recognize free movement, if you have a contract and a judgement, it is great for business if you can easily enforce it across the EU.

Strangely, not translated into EU legislation but as a go ahead for MS to negotiate convention = public international law treaty that floats around the EEC institutional framework as a satellite → CJEU got the powers to interpret the convention until a protocol was negotiated.

Question 14

What is the importance of the preparatory works?

Answer 14

• Preparatory works: classic public international law instruments. But also an authoritative report which is written by a civil servant for the initial Brussels convention: Report Jenard = summary of the poitns of views and the consensus of the interpretation.
  
  • It still gets referred to!
  • Every time a new MS joined, new negotiation and treaty and the MS used this to attach a new report to explain the problems and the interpretations.

Question 15

Are all MS members of the Brussels convention?

Answer 15

All MS are members of the Brussels convention = satellite because it remained a public international law instrument.

Question 16

What is the Lugano convention?

Answer 16

• Lugano convention: extends the philosophy to the states in the immediate geographic proximity = EFTA state (EU Free Trade Association). Almost a copy of the Brussels IA regulation but it is all about business, nothing personal.
  
  • CJEU has no authority of the Lugano convention because it is the MS themselves that interpret the convention in line with the CJEU case law.
  • Lugano also from 2007 and Brussels Ia (2012).
• EU has stated that it will not allow UK to become a part of the Lugano convention because they have a veto for non-EFTA countries.

Question 17

What are the 2 developments in the legal basis wrt PIL?

Answer 17

1. PIL has become a proper legal basis, so no longer a satellite legal basis. Proper regulations now, commission proposal, conciliation meetings,… Preparatory works are really important (Oeil and Prelex). Sometimes also call to tender to ask the market.
2. EU PIL rules are now fully a part of the classic EU method = methode Communautaire.

Question 18

What is the relationship between Denmark and the EU wrt PIL?

Answer 18

Denmark has an opt out = not a part of any EU PIL instruments unless it negotiates a separate protocol with the EU institutions.

Denmark has an opt-out = strictest regime so it is not part of any EU PIL instruments, unless it negotiates a separate protocol. Denmark is now fully part of Brussels I and Brussels Ia but not fully part of applicable law instruments = opt-out mechanism because they are really at the sidelines. They also have a provision where they can switch to the more easy Irish-UK regime.

Question 19

What is the relationship between the UK and Ireland and the EU?

Answer 19

UK and Ireland: more flexible opt-in regime: not automatically part of EU PIL but by a simple letter of the permanent representative = become part. UK and Ireland = more flexible by just a letter.

Question 20

Do you need unanimity before MS can adopt a PIL instrument?

Answer 20

• Yes, in the field of family because it is so sensitive!

Question 21

What is enhanced cooperation mechanism?

Answer 21

• Result of the unanimity needed: MS have made records known as: “enhanced cooperation mechanisms”: in a small group, MS can group together to have further integration amongst themselves: opt-in to a specific instrument when it did not get unanimity.
  
  • You get patchworks of enhanced cooperation between MS
  • This complicated enforcement because it is not always the same states that are a part.

Question 22

What is the difference between enhanced cooperation mechanism and fully fledged EU regulation?

Answer 22

• So: fully fledged EU regulation = assured of harmonised application.
• If it is an enhanced cooperation mechanism = keep an eye out who is a part.
• Denmark? Check if they have signed up through this particular instrument.

Question 23

What do you need for a successful regime?

Answer 23

The vast majority concerns jurisdictional rules and the recognition and enforcement of rules = main problem in jursidictional agreements.

• But if you want to have a successful regime, you need an agreement on the jurisdiction (step 1), rather than on recognition and enforcement (step 3).
• Idea of Mutual trust (Gasser & Turner case)

Question 24

What are the main changes Brussels I and Brussels Ia?

Answer 24

• Expansion of the geographical scope of application.
• Also wider chunk of civil and commercial litigation, introduce a whole range of uses.
• Asset rule: if you have a claim against another party and that party has some assets in the EU → European court even if they do not live in the EU.
• Commission expand the scope to forum necessitatis = you allow your courts to hear a case if the parties have no reasonable means of redress in another state: eg. if there is a war ongoing or where the courts are not objective.
  
  • But, might get it to clash to much with other states.
• Before, you needed to be domiciled in the EU before you could give jurisdiction to the courts of a MS.