IBL2017 Flashcards
What is PIL?
Private International Law
Designed to help resolve private law disputes which involve an international (foreign) element.
a) which court is competent to adjudicate their dispute;
b) which substantive legal rules should be applied by the competent court to resolve that dispute;
c) whether that decision will be recognised and enforced abroad.
What is ‘Tort’?
A civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act - non-contractual Erstatningsret
What is a tort case?
Erstatning udenfor kontrakt.
A non-contractual case between WD and WI
What does ‘Actor sequitur forum rei’ mean?
A judgment rendered in favour of the claimant in a case where the defendant has not taken any procedural steps to protect its interests by responding to the claimant’s written pleadings or by appearing before the court for a scheduled meeting
What is an important concept of PIL between jurisdiction and choice of law?
They are independent of each other, and governed by separate sets of rules. Even if e.g. a German court assumes jurisdiction, that court may find that the substance of the dispute between the parties is governed by French law
What is arbitration?
Means: Cutting Up. The concept whereby different issues within a particular case may be governed by the laws of different states
What is renvoi?
Means: Sending Back.
When a forum state is directed to consider the law of another state. If the judge choose to use the the choice of law of the new country, which might send it back to the forum state (which is renvoi). However, this is excluded in the Hague Convention, Rome Convention and Rome I, where the substantive law should be used when the forum state’s choice of law says you should use foreign law.
What is lex fori?
A legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought
How is the legal reasoning?
- Presentation of the legal issue
- Legal sources
- Legislation
- Statutes (national)
- Conventions (international)
- Regulations and directives (EU)
- Judgments and awards
- Stare decisis (to stand by the decision - precedent)
- Critical assessment of the law
How is the presentation of judgments / awards?
- Presentation of the legal issue
- The key facts of the case
- The key points of the claimant’s claim and reasoning
- The key points of the defendant’s claim and reasoning
- Analysis of the Court’s / tribunal’s decision and reasoning
- Critical assessment of the decision and the reasoning
What countries use the civil law and what is it based on?
Reciprocal recognition and enforcement - only accept another country’s laws if they accept your law.
Europe (not UK)
What countries use the common law and what is it based on?
Unilateral recognition and enforcement - can accept another country’s laws even if they do not accept your law.
US, UK, Australia
What is the ‘forum non conveniens’ principle?
The principle whereby a court which has jurisdiction may nonetheless elect to decline to exercise it and defer instead to another foreign court which will provide a more appropriate forum.
What are the three connections recognised as domicile for a legal person?
- statutory seat
- central administration
- principal place of business
What does the Brussels I Regulation govern?
It governs whether a Member State has jurisdiction, and the recognition and enforcement, in civil and commercial matters
What is general and specific bases of jurisdiction?
General: provides courts with the power to adjudicate any and all matters (domicile)
Specific: comprises situations where the assertion of power to adjudicate is limited to matters arising out of the affiliating circumstances on which the particular jurisdictional claim is based
What is ‘forum solutionis’?
The place of performance of the obligation in question
What is ‘forum delicti commissi’?
The forum of the commission of the tort/delict
What does the ‘appearance as implied consent of Brussels I mean?
That a non-resident defendant who voluntarily enters an ‘appearance’ in the foreign court will ordinarily be deemed to have given his/her implied consent to the jurisdiction of that court, provided that the appearance was not entered for the purpose of contesting such jurisdiction.
What does the Brussels I apply to?
Civil and commercial matters
What is excluded from the Brussels I?
Family law
Bankruptcy
Arbitration
What is the starting point regime in chapter 3 of Brussels I?
The simple starting point is that all judgements emanating from the court of the various EU Member States shall be recognised and enforced in all other Member States
What is lis pendens?
That the court seised second must of its own motion stay the proceedings until is has been determined whether the court first seised has jurisdiction. Once the jurisdiction of the court first seised has been established, the court second seised must decline jurisdiction.
What is the Tessili method?
A case-law
That for the purposes of Article 5(1) of Brussels I, the place of performance of the obligation in question must be determined in accordance with ‘the law which governs the obligation in question according to the rules of conflict of laws of the court before which the matter is brought’.
What is the ‘obligation in question’ for other contract?
De Bloos v Bouyer
The obligation is question referred to in article 5(1) of the convention is ‘the contractual obligation forming the basis of the legal proceedings’, i.e. the obligation ‘which corresponds to the contractual right on which the plaintiff’s claim is based’.
What does the Article 5/7(1)b of the Brussels I apply to?
Contracts regarding sales of goods and the provision of services.
What are the steps of the classic Article 5/7(1) method of the Brussels I?
Applies to contracts for other things that the sales of goods and provision of services
Step 1: Which obligation?
- De Bloos v. Bouyer: obligation in question is the obligation which corresponds to the contractual right on which the plaintiff’s claim is based
Step 2: Choice of law
- Which national law should be applied to determine the ‘place of performance’ of the obligation?
- Tessili method: choice of law rules applicable in the forum in order to determine substantive contract law
Step 3: Determine the place of performance
- E.g. illustration 2h: under French law, debts are generally to be paid at the debtor’s residence, which is in Sweden. This means that Sweden is the ‘place of performance’.
What is ‘accessorium sequitur principale?
Latin for: the accessory (obligation) follows the principal
What is defamation?
Æreskrænkelse/injurie: usand og æreskrænkende beskylding, som kan føre til en retssag og evt. til idømmelse af straf
What is the Bier and the Shevill ruling, and what is the difference?
Case-laws:
- Bier ruling: Courts for the place of the event giving rise to the damage have jurisdiction in respect to the entire damage
- Shevill ruling: Courts for the place where the damage occurred have jurisdiction solely in respect of harm caused in the state of the court seised
What are the formal requirements in article 25 New Brussels I?
a: the agreement must be in writing or evidence in writing
What is derogation?
To take away the competence of a court that would normally have jurisdiction
What is prorogation?
To give an incompetent court competence through a choice of court agreement
What is an exclusive choice of court agreement?
Only one court has jurisdiction
What is the purpose of choice of court agreement?
Predictability and protect against forum shopping
What are the two purpose of the ordinary lis pendens provision in Brussels I, art. 29?
Avoid parallel proceedings
Explain how the ordinary lis pendens mechanism works.
First come first served
When are court proceedings instituted under Brussels I?
When the writ is handed into the court, or, if, the writ is handed into the authority of the responsible service (France).
Do you think the Gasser judgment is good?
No, no, no
What is the purpose of the “Reverse” lis pendens provision in Brussels I, art. 31?
To protect the efficiency the of the exclusive choice of court agreement (exclude Italian torpedoes).
What are the steps in the adjudication (afgørelse) of a commercial dispute with an international element?
- Jurisdiction
- Choice of applicable law
When does the conflict-of-laws rule-sets apply?
It only applies in situations involving a conflict of laws (Rome I Article 1(1))
If both countries would give the same outcome, it does not matter if you use one over another (illustration 3b)
What is forum shopping?
When plaintiff A initiates litigation against defendant B in the courts of state X because A predicts that X-court will apply procedural or substantive rules more favourable to A.
What does delict mean?
A breach of criminal or civil law
What is lex loci contractus?
In the conflict of laws, the lex loci contractus is the Latin term for “law of the place where the contract is made”
What are connecting factors?
In the conflict of law, connecting factors, are facts which tend to connect a transaction or occurrence with a particular law or jurisdiction. The following are the examples of connecting factors:
- Domicile, residence, nationality or place of incorporation of the parties;
- The place of conclusion or performance of the contract;
- The place where the tort or delict was committed;
- The flag or country of registry of the ship;
- The ship owner’s base of operations.
What is The Rome Convention and the Rome I Regulation?
Is regulates the choice of substantive law in the courts of the EU Member States (ONLY contractual obligations)
What is the Rome II Regulation?
It regulates the choice of substantive law in the courts of the EU member states for non-contractual obligations (e.g. traffic accidents)
What are the three different views of the ‘presumption’ of connecting factor in the Rome Convention Article 4(2)?
- Tie-breaker
- Win-all
- Middle-position
What are mandatory rules?
Mandatory rules are by definition rules which cannot be derogated from by contract
How is an international sale characterised?
Usually by the fact that the seller and buyer have their respective places of business in different states (X and Y)
CISG:
If the country is a CISG-state, you always start with the CISG.
Article 1(1)a: you apply CISG if both countries are CISG-states
Article 1(1)b: when choice of law leads to the law of a contracting state, you use CISG
What is the two-step process in tort?
- Jurisdiction
- Choose substantive law
What does the Rome II apply to?
It applies to events giving rise to damage which occur on or after the date of 11th of January 2009.
According to Article 1, it applies, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters.
Not only the existence and nature of damage, but also the assessment of damage is governed by the applicable law.
What is ‘lex loci delicti commissi’?
Latin for: the law of the place where the delict/tort was committed.
Article 5/7(3) (Brussels I) gives rise to that the ‘place where the harmful event occured’ must be understood as being intended to cover both the place where the damage occured and the place of the event giving rise to it (such that the defendant may be sued, at the option of the plaintiff, in the courts for either of those places) - Bier v Mines de potasse d’Alsace.
What is the Cour de Cassation?
The French court of last resort.
Frankrigs højeste appeldomstol
What is the tortfeasor?
Skadevolderen
What is the lex commissi?
Latin for: if the parties had their habitual residence in the same country, the law of that country shall apply regardless of the place of the tort (Article 40(2) EGBGB)
What is lex communis?
The Common law
What is the EGBGB?
German Introductory Law to the Civil Code
What is ‘acta iure emperii’?
The liability of the State for acts and omissions in the exercise of State authority. Officials who act on behalf of the state (Article 1, states that the Rome I does not apply for this).
What is the principle of universal application?
Rome II Article 3 (Rome I Article 2): Any law specified by the Regulation is to be applied whether or not it is the law of an EU member state.
What are some of the substantive tort issues?
- Basis and extent of liability (e.g. whether the basis of liability if fault or no-fault and which persons can be held liable)
- Grounds for exemption (e.g. whether a person can escape liability)
- Assessment of damages (e.g. the amount of damages to be awarded)
- Prescription and limitation (e.g. whether a claim has become time-barred)
What is ‘lex loci damni’?
Latin for: the law of the place where the damage occurs
What are the exception of ‘lex loci damni’ in Article 4, Rome II?
- Lex loci damni: law applicable shall be the law of the country in which the damage occurs
- However, if both persons have their habitual residence in the same country, the law of that country shall apply
- Or, if it is clear that the tort/delict is manifestly more closely connection with another country than that in 1, or 2, the law of that country shall apply.
Not directly quoted from Rome II.
What is ‘res judicata’?
A judgement rendered on the merits of a given claim precluded a subsequent action proceeding on all or part of the claim.
What is ‘audiatur et altera pars’?
Hear also the other side
What is the mirror-image principle?
For the purposes of enforcement of foreign judgments, those states regard the exercise of jurisdiction by the foreign judgment-rendering court reasonable if their own courts would have had jurisdiction in similar factual circumstances under the applicable rules of direct jurisdiction in those states.
How does Article 45(1)b / 34(2) of the Brussels I work?
General rule: a judgement (including a default judgement) rendered by a court in an EU member state must be enforced in the other EU member state.
Article 45(1)b:
- First hurdle: defendant must demonstrate that the judgement was given in default of his appearance (default judgement)
- Second hurdle: defendant must prove that the document instituting the proceedings was not served in sufficient time to enable the defendant to arrange for a defence
- However: the plaintiff can then challenge the defendant on the second hurdle
Why is arbitration popular commercially?
Proceedings are confidential
Efficiency
Less expensive
Flexibility (freedom to determine procedural rules which shall apply)
What is the lex arbitri and the lex loci arbitri?
Lex arbitri: law of arbitration, the rule-set which regulates the arbitral process within a given state
Lex loci arbitri: the law of the place of the arbitration
What is arbitrability?
When one party claims that the kind of dispute in question is not capable of being settled by arbitration
What is the principal purpose of The Rome I Regulation?
To eliminate forum shopping by harmonizing the choice of law rules for contract
What situations does the The Rome I Regulation apply to?
Generally all situations involving a conflict of laws regarding contractual obligations in civil and commercial matters
What does the Article 4 in The Rome I Regulation regulate?
Article 4 regulates the choice of law in the absence of any agreed choice.
What does Article 4(1) in The Rome I Regulation say?
A contract shall be governed by the law of the country with which it is most closely connected.
What does Article 4(3) in The Rome I Regulation say?
“it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply.”
What does Article 4(4) in The Rome I Regulation say?
Provides a presumption in favour of the law of the country in which the carrier has his principal place of business, provided this is also the country where, at the time the contract is concluded, the place of loading or the place of discharge or the principal place of the consignor is situated.
What does Article 4(5) in The Rome I Regulation say?
Article 4(5) contains an “escape” clause providing two exceptions to the presumptions.
First, the presumption in Article 4(2) is to be disregarded if the obligation characterizing the contract cannot be identified.
Second, all presumptions can be disregarded if it appears from the circumstances of the case that the contract is more closely related to another country.
What does the Article 5 in The Rome I Regulation regulate?
Article 5 regulates contracts of carriage
What does the Article 6 in The Rome I Regulation regulate?
Article 6 regulates consumer contracts
What does the Article 7 in The Rome I Regulation regulate?
Article 7 regulates choice of law for insurance contracts
What does the Article 8 in The Rome I Regulation regulate?
Article 8 regulates individual employment contracts
What is legal subrogation?
Legal subrogation is defined as situations where a person (the creditor) has a contractual claim against another (the debtor) and a third person has a duty to satisfy the creditor, or has in fact satisfied the creditor in discharge of that duty.
What is party autonomy?
The principle of party autonomy is the fundamental in European and international contract law, and article 3 of Rome I allows parties to choose the law governing their contract.
What is lex mercatoria and can it be applied under The Rome I regulation?
A body consisting of international commercial usages and of principles and rules common to most states.
Parties to European litigation cannot choose lex mercatoria fully or partly. If parties wish their contract to be governed by the lex mercatoria, they have to agree on arbitration and agree that the tribunal has its seat in a country whose arbitration law provides for this choice of law.
What is the difference between simple and double convention?
Simple convention: uniform enforcement and recognition. National law for jurisdiction.
Double convention: uniform jurisdiction, enforcement and recognition
What is reverse lis pendens?
If a court with exclusive jurisdiction is seised second or later, that courts seised before the exclusive courts shall stay their proceedings until the exclusive court has declared that is has (or has not) jurisdiction under the agreement.
What are classified external situations in the New Brussels I?
Cases in which the defendant is domiciled in a non-Member state, and cases in which the judgement originates from such a state.
What is the New Brussels I?
The successor of the Brussels I which shall apply from 10th of January 2015.
What are the four most important proposals adopted in the New Brussels I?
- Arbitration
- External situations
- Choice-of-court agreements
- The abolition of exequatur
Does the Brussels I govern arbitration?
No.
What are torpedo actions?
Where a party is trying to avoid an arbitration agreement by instituting court proceedings.
When is a court deemed to be seized in the Brussels I?
When the court instituting the proceedings is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant.
What is the lex causae?
The law that governed the dispute
What is an exequatur?
An exequatur is a legal document issued by a sovereign authority allowing a right to be enforced in the authority’s domain of competence.
What is the difference on exequatur between Brussels I and the New Brussels I?
Exequatur was abolished in the New Brussels I, and recognition were made automatic across member states.
The New Brussels I provides that a judgement given in a member state shall be recognized in the other member states without any special procedure being required.
What is liben tourism?
Forum shopping whereby the claimant in international libel litigation sues in the state in which he is likely to get the most favourable result
What is the multiple-publication rule?
That each publication or communication of the offending material constitutes a separate tort
What is the single-publication rule?
That a claimant in a libel suit has only one claim for each mass publication
What is local and total jurisdiction?
Local jurisdiction: the courts of another member state where the publication was distributed only have jurisdiction to deal with the damage suffered in the territory of that member state
Total jurisdiction: only the courts of the member state where the publisher is established have jurisdiction to determine all the damage suffered
What is the difference between publication over internet and newspapers?
The distribution of content placed online is in principle universal, and not always possible to measure with accuracy. Therefore, the alleged victim may institute proceedings in respect of all the damage suffered in the member state where he has his centre of interests.
What are the principles of interpretation of the Brussels Convention?
- Uniformity
- Predictability
- Procedural proximity
- Free movement of judgements
- Due process
What is the Lugano Convention?
A copy of the Brussels Convention used by the EFTA and EEC Member States
What are the five cases where a second court can take a case?
- Agreement is null and void under the law of the state of the chosen court
- A party lacked capacity to conclude the agreement under the law of the state of the court seized
- Giving effect to the agreement would lead to manifest injustice or would be manifestly contrary to the public policy if the state of the court seized
- The agreement cannot reasonably be performed
- The chosen court has decided not to hear the case
What is the approach to recognition and enforcement in civil and common law?
Common law: unilateral basis: recognises and enforces without being assured in return that their judgments will be recognised and enforced in other states.
Civil law: reciprocity: only recognise and enforce if the other state would have done the same
What are the three categories a mixed convention consists of?
- White: actor sequitur forum rei
- Black: prohibits states to apply exorbitant bases of jurisdiction vis-á-vis defendants habitually resident in other contracting states
- Grey: allowed to apply national rules on international jurisdiction
What are the three fundamental principles of the Hague judgments convention?
- the court chosen must hear the case when proceedings are brought before it
- any other court before which proceedings are brought must refuse to hear the case
- the judgment of the chosen court must be recognised and enforced
What are the main differences between Hague Judgments Convention and Brussels I?
Hague is only B2B
Hague does not contain provisions on:
- contract or tort jurisdiction
- exclusive jurisdiction
- lis pendens
- jurisdictional rules protection consumers and employees
Hague is flexible (possible to expand and limit the scope of application)
Article 4(1+2), New Brussels I - General Provisions
1: Sue in Member State
2: Foreigners: rules of jurisdiction of domicile
1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.
2. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that Member State.
Article 7(1+2), New Brussels I - Special Jurisdiction
1: Contract: place of performance
Goods: where delivered
Service: where provided
2: Tort/delict: where the harmful event occurred
A person domiciled in a Member State may be sued in another Member State:
(1)
(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
— in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,
— in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;
(c) if point (b) does not apply then point (a) applies
(2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.
Article 17(1+2+3), New Brussels I - Jurisdiction over Consumer Contracts
- In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 6 and point 5 of Article 7, if:
(a) it is a contract for the sale of goods on instalment credit terms;
(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or
(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities. - Where a consumer enters into a contract with a party who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.
- This Section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation
