FPL W47

Question 1

What is private international law?

Answer 1

Private International Law is the body that solves questions that arise in transnational situations by reducing these to determining which country is most closely connected to the case.

Question 2

What points does private international law cover?

Answer 2

International private law covers several points, such as the applicable law, the competent court, and recognition of the foreign court’s awards.

Question 3

What are the categories within private international law?

Answer 3

1. Formal, including
   a. rules on jurisdiction (which court may decide) and
   b. rules on recognition and enforcement (when is a foreign decision recognized and executable).
2. Material, including conflict of laws (which law applies).

Question 4

What does ‘access to justice’ mean?

Answer 4

Access to justice refers to the rights of individuals and entities to seek a fair and effective legal remedy when their rights and interests have been violated.

Question 5

What does access to justice encompass?

Answer 5

Access to justice encompasses the ability of individuals to initiate legal proceedings, participate in legal processes, and have their cases heard before an impartial and competent tribunal.

Question 6

Where do we find the rules on access to justice?

Answer 6

The Charter of Fundamental Rights of the European Union, article 47, gives the Right to an effective remedy and to a fair trial.

Question 7

In the context of private international law,

What does competence mean?

Answer 7

In private international law, competence refers to the authority or jurisdiction of a particular legal system or court to handle a specific legal matter. Competence determines which court has the authority to adjudicate the case.

Question 8

What must the court do once a plaintiff files a claim with international aspects?

Answer 8

The court will have to investigate whether it has the competence to adjudicate the case and whether its national law or a different legal system should be applied. The court applies the rules of its national system of Private International Law in order to find out whether the court itself is competent.

Question 9

For a case with international aspects

What must the court do when it is not competent, and what if it is?

Answer 9

If the court is not competent, it must refrain from deciding the issue. If it is competent, the court then examines which legal system it should apply. Subsequently, the court decides the issue on the basis of the applicable law.

Question 10

What is the focus of the Brussels I Regulation?

Answer 10

The Brussels I Regulation focuses on the jurisdiction and the recognition and enforcement of judgements in civil and commercial matters.

Question 11

What is the applicability of the Brussels I Regulation?

Answer 11

The Brussels I Regulation is primarily concerned with the determination of which EU member state’s court has jurisdiction over a particular legal dispute and how judgements from one member state are recognized and enforced in another.

Question 12

What are examples of what the Brussels I Regulation deals with?

Answer 12

The Brussels I Regulation deals with contracts, torts, family law matters, etc.

Question 13

What is the relevance of the Brussels I Regulation?

Answer 13

The Brussels I Regulation deals with the question of where a party can sue, and where a party can be recognized and enforced within the EU.

Question 14

What are the (for us) important articles of the Brussels I Regulation?

Answer 14

Important articles of the Brussels I Regulation:
* Art. 4(1) on jurisdiction related to the general rule,
* Art. 7(2) on jurisdiction related to tort, and
* Art. 63 for the definition of ‘domocile’ for companies.

Question 15

For a case with international aspects,

What is the general rule on where a defendant should be sued?

And where do you find the rule on this?

Answer 15

In the Brussels I Regulation, the general rule for matters related to tort or delict is that a defendant should be sued in the Member State where they are domociled.

Can be found in art. 4 of the Brussels I Regulation.

Question 16

For a case with international aspects,

Where should a defendant be sued for a matter related to tort?

And where do you find the rule on this?

Answer 16

In matters relating to tort, delict or quasi-delict, a defendant should be sued in the courts for the place where the harmful event occurred or may occur.

Can be found in art. 7(2) of the Brussels I Regulation.

Question 17

In a case with international aspects, which law applies?

Answer 17

If there is a foreign element in the case, the judge takes the conflict of laws of the country of the court. If the foreign element is related to tort, the Rome II Regulation applies.

Question 18

What are the (for us) important articles of the Rome II Regulation?

Answer 18

Important articles of the Rome II Regulation:
* Art. 4 on the general rule,
* Art. 5 on Product Liability, and
* Art. 23 on Habitual Residence.

Question 19

What is the general rule for what law applies in a tort case with international aspects?

And where do you find the rule on this?

Answer 19

The law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs,
irrespective of the country in which the event giving rise to the damage occurrred and
irrespective of the country or countries in which the indirect consequences of that even occur.

Question 20

What is ‘forum shopping’?

Answer 20

Forum shopping means that the plaintiff approaches the court that is known to decide in the most favourable way (for the plaintiff).

Question 21

What law country’s applies for a damage caused by a product?

And where do you find the rule about this?

Answer 21

The law applicable to a non-contractual obligation arising out of damage caused by product shall be:
a. The law of the country where harmed person had their habitual residence when the damage occurred, if the product was marketed there ; or, failing that,
b. The law of the country in which the product was acquired, if the product was marketed there; or, failing that,
c. The law of the country in which the damage occurred, if the product was marketed there.

Can be found in art. 5 of the Rome II Regulation.

Question 22

What is the habitual residence of a company?

And where do you find the rule about this?

Answer 22

The habitual residence of companies and other bodies, corporated or unincorporated, shall be the place of central administration.

Can be found in art. 23(1) of the Rome II Regulation.

Question 23

What counts as a company’s habitual residence when one of its branches caused the harm?

And where do you find the rule about this?

Answer 23

Where the event giving rise to the damage occurs, or the damage arises, in the course of operation of a branch, agency or any other establishment [of a company], the place where they are located shall be treated as the place of habitual residence.

Can be found in art. 23(1) of the Rome II Regulation.

Question 24

What is the habitual residence of someone acting in the course of their business?

And where do you find the rule about this?

Answer 24

The habitual residence of a natural person acting in the course of their business activity shall be in their principal place of business.

Can be found in art. 23(2) of the Rome II Regulation.

Question 25

In what ways can corporations become liable?

Answer 25

1. Liability of a corporate body for actions by the board,
2. Negligence liability of directors and managers for actions by the corporate body, and
3. A corporation may be liable for negligence for not organizing its business appropriately (organizational negligence).