Class 3: Introduction Part III Flashcards
What did von Savigny propose?
- 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.
What is an example of the problematic nature of characterization?
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.
What is the challenge to the qualification exercise?
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.
Why is it difficult to harmonize European PIL?
- 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.
What is the discussion when it comes to culpa in contrahendo?
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).
Is there a lot of harmonization when it comes to private law?
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,…
What is the DCFR?
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.
What is renvoi?
- 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.
What is Vorfrage?
- 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.
What is an example of Vorfrage?
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?
History of EU PIL?
- 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.
What is the EEX Treaty?
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.
What does the treaty says and has this been translated into EU legislation.
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.
What is the importance of the preparatory works?
- 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.
Are all MS members of the Brussels convention?
All MS are members of the Brussels convention = satellite because it remained a public international law instrument.
What is the Lugano convention?
- 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.
What are the 2 developments in the legal basis wrt PIL?
- 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.
- EU PIL rules are now fully a part of the classic EU method = methode Communautaire.
What is the relationship between Denmark and the EU wrt PIL?
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.
What is the relationship between the UK and Ireland and the EU?
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.
Do you need unanimity before MS can adopt a PIL instrument?
- Yes, in the field of family because it is so sensitive!
What is enhanced cooperation mechanism?
- 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.
What is the difference between enhanced cooperation mechanism and fully fledged EU regulation?
- 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.
What do you need for a successful regime?
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)
What are the main changes Brussels I and Brussels Ia?
- 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.
