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’.