Theory

Question 1

What is PIL ?

Answer 1

Deals with disputes of private parties which have an international element.

3 pillars - Jurisdiction, applicable law and recognition and enforcement.

Why ? For legal certainty

Question 2

Different conflict rules

Answer 2

Unilateral - Conflict rule indicates the law of one forum

Bilateral - Conflict rule indicates the law of 2 possible forums

Multilateral - Conflict rule which indicates 2 or more possible laws (using connecting factors)

Uniform - Rule states the applicable law without using connecting factors

Substantive rules - Law that provides answers to specific cases

Contributive rules - Laws that provide the applicable law by examining the facts of the case and connecting factors

Question 3

Bartolus a Saxoferrato

Answer 3

Classification depends on the wording of the statutes

Question 4

Ulrick Huber

Answer 4

1. The laws of each state have authority within its frontiers.
2. Subjects to its law are those who are in its territory (wether permanently or temporarily).
3. The law which has been applied in one territory should retain its effect everywhere with comity

Question 5

Von Savigny

Answer 5

Proximity theory - Objective - Non biased

Question 6

Theories

Answer 6

Comity - Obligation to co-operate between states.

Proximity - The law which has the closest connection is applicable.

Vested right - Rules applied in one state should retain their effect in another.

Question 7

Classification

Answer 7

Comparative law - Notions will be explained by taking different legal systems and taking the most common meaning of the notion

Lax causae - Notions will be explained by reference to the law governing the issue/subject matter

Lex fori - Notions will be explained by the law of the country whose courts are seized

Question 8

Public policy principle

Answer 8

Negative dimension - Ordre public :

• Refuse jurisdiction because it manifestly violates the fundamental norms and principles of a state
• Corrects the result of the conflict rule but still respects it

Question 9

Super mandatory rules

Answer 9

Addition to the applicable law to safeguard certain values deemed necessary in international law.

Question 10

Lis Pendens

Answer 10

Pending proceedings if another court is dealing with the same issue until it is resolved by that court.

Question 11

Renvoi

Answer 11

Remission - The conflict rule refers to foreign law which has a conflict rule which refers it back to the 1st legal system (UK and Germany)

Transmission - The conflict rule refers to foreign law which has a conflict rule which refers it to a 3rd legal system (Germany)

Question 12

Preliminary or incidental question

Answer 12

What ? A question that needs to be answered to answer the main question.

Dependent approach - Lex causae - According to the same law as the one which governs the main question

Independent approach - Lex fori - As if it was the main question in separate proceedings

Question 13

Choice of law

Answer 13

Functional limitations :
- To protect weaker parties

Situational limitations :
- Geographical

Technical limitation :

• Public policy
• A particular legal instrument favours other superior interests

Question 14

Conflit mobile

Answer 14

Definition - French

Solutions :

• Adaptation
• Simulation
• Transformation

Question 15

Fait accompli

Answer 15

Correction mechanism to attribute legal validity to a legal act so that it is recognized in a country where it does not exist.

Question 16

Adaptation

Answer 16

Middle line between 2 applicable laws

Question 17

Simulation

Answer 17

A right continues to exist when the object/person to which the right is connected moves to another jurisdiction

Question 18

Transformation

Answer 18

If simulation not available.

Search for an equivalent right under the new jurisdiction.