Private International Law: An Overview

PRIVATE INTERNATIONAL LAW Very political subject, EU member states have chosen for citizen’s integration, in particular for the establishment of the area of freedom and security and justice.​ The methodology we apply has been invented by Savigny and Mancini. ​ It’s not part of intern...

PRIVATE INTERNATIONAL LAW Very political subject, EU member states have chosen for citizen’s integration, in particular for the establishment of the area of freedom and security and justice.​ The methodology we apply has been invented by Savigny and Mancini. ​ It’s not part of international law, it’s a domestic subject, it’s not made by private people but by states. We call it private international law because the subject itself applies to private relationships, it concerns private situations like marriage, contracts, banking, etc. It corresponds more or less to civil code subjects. Preliminary issues Private International Law: A branch of law that governs private relationships and facts involving multiple legal systems, giving them an international character. Purpose: to address and resolve specific problems arising from the interaction of different legal systems. Prevents abuse related to "forum shopping" (choosing a legal jurisdiction to gain a favorable outcome). Key Issues: Conflicts of Laws: Situations where laws from different jurisdictions apply, leading to potential conflicts on how to proceed. Varying Perspectives: Legal validity can depend on the perspective of different legal systems (e.g., marriage between an Italian and a Turkish citizen celebrated in Canada). Importance: individuals and businesses often interact with multiple legal systems, creating complex legal scenarios. Each legal system may have varying laws that can significantly impact cases, even if they appear similar. The field is known by different names in different countries: ​ England: Traditionally referred to as "Conflict Laws." Also known as "Private International Law" in alignment with international terminology. In England, “conflict of laws” and “private international law” have come to mean the same thing. In the United States conflict of laws is the common term for this issue. According to the American law institute the subject covers the same three areas as in England: jurisdiction, choice of law and foreign judgments and concerns also internal conflicts among sister states. But also, private international law is used, particularly when foreign states are involved. At the US department of state, we found the office of the assistant legal adviser for private international law. In France droit international price is the accepted name for the subject. It is regarded as being made up of two parts, conflits de lois and conflits de jurisdictions. In Germany the position is slightly different covers only choice of law. Jurisdiction and the recognition of judgments fall under a completely different subject. This German terminology may be more logical, but it has the effect of splitting matters that are closely related into two different subjects. In Spain “Derecho internacional privado” is the accepted term. THE NAME OF THE SUBJECT IN ITALY BEFORE 1995: In Italy traditionally diritto internazionale privato mainly referred to choice-of-law while jurisdiction and the recognition of judgements fell under a different term “diritto processuale civile internazionale”. Until 1995 the rules on choice-of-law were provided for the introduction of the civil code, the rules on jurisdiction and recognition of judgements were included in the Code of Civil Procedure. PARTITIONS OF PRIVATE INTERNATIONAL LAW Private international law is made up of three main areas: -jurisdiction: determining whether the courts of a particular country have jurisdiction to hear a case arising out of a legal relationship with an international element. -choice of law, which deals with the determination of the law applicable to such a relationship -recognition and enforcement of foreign judgements and foreign acts, which deals with whether the resulting judgement or act will be recognized and enforced in other countries. Private international law may also include rules of cooperation and mutual assistance between countries as well as uniform rules specifically designed to govern international relations. PRINCIPLE OF MUTUAL RECOGNITION= legal situations created by an authority of a member state and considered as existing and valid in all other member states. ITALIAN LAW NUMBER 218/1995 In 1995, a new law was enacted: law no. 218 of 31 May 1995, “Riforma del diritto internazionale privato”. Its article 1 (Oggetto della legge) states that: La presente legge determina l'ambito della giurisdizione italiana, pone i criteri per l'individuazione del diritto applicabile e disciplina l'efficacia delle sentenze e degli atti stranieri. For this reason, now we consider in Italian that the word “diritto internazionale privato” covers the three issues of jurisdiction, choice-of-law and recognition of foreign judgment It may be useful to refer to the Italian Law as an example: The Italian law is divided into 4 Chapters: Ch.1 is an Introduction made of 2 articles; Ch. 2 deals with the “Giurisdizione italiana” (article 3-12); Ch. 3 covers the “Diritto applicabile”, i.e. choice-of-law, in articles 13-63, which deal with “Disposizioni generali” in articles 13-19 and with the different issues in articles 20-63; Ch. 4 contains the rules on the “Efficacia di sentenze e atti stranieri” (articles 64-71). MAIN FEATURES OF PRIVATE INTERNATIONAL LAW 1)Private international law should be qualified as private law: this subject provides for the legal regulation of relationships between individuals or subjects who act as such in an international context 2)It’s a proper private law sector: PIL is different from and independent of public international law. Public international law regulates the relations between the States and other subjects with international legal personality. 3)PIL is not international, but national law and is different from State to state: each state has its own system of private international law. As a matter of fact, there is no single valid and equal private international law for all countries; ​ each State has its private international law. As an exception, the EU also has its own system of private international law. 4) Relativity of private international law: states try to overcome the negative effect of the private international law relativity by drawing up international legal instruments which unify the private international law rules in different states and that are common to the participating States. THE EUROPEANIZATION OF PIL EEC Treaty of 1957: it did not contain general provisions on PIL, but its Article 220 asked the Member States “so far as is necessary, [to] enter into negotiations with each other with a view to securing for the benefit of their nationals... the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals”. Arbitral awards are recognized via the 1958 New York Convention. ​ 6/2/2025 ​ Legal systems vary globally due to societal changes. The 19th century saw efforts for law unification to minimize legal discrepancies, but complete uniformity is impractical due to diverse national laws and policies. Treaties and International Law: Some legal matters have been unified through international treaties, though not all countries have ratified them (e.g., Warsaw Convention for aviation replaced by the Montreal Convention). UNIDROIT was established in 1926 to promote private international law unification. EUROPEAN UNION CONTEXT Within the EU, certain private international law matters are partially unified through regulations. The European Commission oversees uniformity, but states must implement directives into their laws, leading to residual differences. Competence in legislation is divided into three categories: -exclusive EU competence- -exclusive member state competence -shared competence respecting subsidiarity. HISTORICAL CONTEXT: The Brussels Convention (1968) addressed jurisdiction and recognition of foreign decisions, later expanded with the Lugano Convention for non-EU states and the Rome Convention for choice of law in contracts. Research in the 1990s highlighted challenges faced by European citizens due to differing private international laws, exemplified by a divorce case involving Finnish and Italian couples. RECENT DEVELOPMENTS: Following the Amsterdam Treaty, new regulations transformed the Brussels and Rome Conventions into EU regulations. Key regulations include Brussels I, Brussels II, Rome I, Rome II, and Rome III (regarding divorce and legal separation). IMPACT ON DOMESTIC LAW: Recent codifications of private international law in various EU member states (e.g., Italy, Germany, Belgium, Netherlands) must align with existing EU regulations, which take precedence over domestic laws. 7/2/2025 ​ CODIFICATION EFFORTS IN FRANCE: - France is attempting to codify private international law but faces challenges due to its basis in case law and existing conventions. - Domestic rules must also be incorporated, leading to complex debates on the topic. - Denmark's choice to remain outside European private international law is seen as problematic, especially regarding immigration issues. GLOBAL CONTEXT: other regions, like Latin America and North America, are also exploring codification and legal harmonization. In Africa, some regions have established specific rules under organizations like the Frank organization. EUROPE stands out in its commitment to creating a common area of freedom and security. The effects of Brexit highlighted challenges in maintaining this integrated legal system. CATEGORIES OF EUROPEAN RULES POST BREXIT Two categories exist: - Not Accepted: rules are no longer part of the UK system (e.g., Brussels I). -Accepted: rules retained in the UK system (e.g., Rome I and II). The UK’s request to join the Lugano convention was denied due to lack of trade partner status. Full harmonization of private international law remains difficult. Proposed unification efforts, such as those concerning surrogacy, face varying laws across countries. DEFAMATION ISSUES: conflicts arise between the right to privacy and freedom of expression, with different countries favoring one over the other. ITALIAN LAW FRAMEWORK: Italian law on private international law is divided into four chapters, covering jurisdiction, applicable law, and recognition of foreign judgments. EXAMPLES OF PIL CASES Divorce Case: jurisdiction and applicable law issues arise when a couple from different countries seeks a divorce. Same-Sex Marriage: Legal recognition of parenthood for same-sex couples varies across jurisdictions. Arbitration: Confidentiality issues and enforcement of arbitral awards can complicate cross-border disputes. JURISDICTION: it is central to private international law, determining which court has authority in cross-border disputes. Each state decides its own jurisdiction based on sovereignty and international agreements. Who applies PIL? International lawyers (in particular: contracts, companies, family, insolvency) Justice and arbitrators, mediators Notaries (companies, succession and wills, property)  Registrar officers International civil servants Company lawyers Diplomatic and consular officers 14/2/2025 ​ Jurisdiction is linked to a connection with a state. International jurisdiction allows a state's courts to address disputes from private international situations, whether contentious or voluntary. ​ Courts can only handle disputes that are connected to their state. EU Rules vs. Domestic Rules: EU laws (including those from the Lugano Convention) take precedence over domestic laws but do not cover all scenarios, necessitating the use of domestic laws (like Italian or Belgian law). Generally, individuals and companies without EU establishment fall under domestic rules. DETERMINING INTERNATIONAL JURISDICTION: It must first follow European private international law rules. DOUBLE REGULATIONS: Cover both international jurisdiction and extraterritorial validity (e.g., Brussels I-BIS, Brussels II-Ter). TRIPLE REGULATIONS: Address international jurisdiction, applicable law, and extraterritorial validity (e.g., European Succession Regulations). These are preferred for their comprehensive approach. CHOICE OF LAW ISSUES: Diverse legal systems lead to challenges in establishing applicable law. There is a balance between harmonization of laws and divergences across countries. Historical context: The rediscovery of legal texts in Bologna influenced modern private international law and how to treat foreigners. IMPORTANCE OF CHOICE OF LAW: relevant in international relationships and potential judicial proceedings (e.g., adoption requires authority). ​ Law guides relationships and dispute resolution, but uncertainty exists about whether court proceedings will be needed. The approach to choice of law can vary depending on jurisdiction and forum relevance. Italy has significant trade relationships, both importing energy and exporting agricultural products and machinery. ITALIAN PIL SYSTEM, THE 3 CODIFICATIONS: Pasquale Mancini was an expert of private international law before the unity of Italy to help for the building of an Italian state. He was a believer of cooperation among nations, he promoted the first PIL codification in 1865. Articolo 6 preleggi 1865: lo stato e la capacità delle persone e i rapporti di famiglia sono regolati dalla legge della nazione a cui appartengono. Articolo 17 disposizioni preliminari al Codice civile: Lo stato e la capacità delle persone e i rapporti di famiglia sono regolati dalla legge dello Stato al quale esse appartengono. ​ L 218/1995 Articolo 20: capacità giuridica delle persone fisiche “La capacità giuridica delle persone fisiche è regolata dalla loro legge nazionale” The structure of these three rules is the same. Examples from other countries Spain: Código civil, titulo preliminar articolo 10: we have a subject matter (in this case possession) which is the content of the legal situation related to the rule. ​ Switzerland: loi federale sur le droit international privè, article 48 ​ France: Code civil (article 311-14)​ Norwegian draft on conflict-of-laws on obligations: defamation is governed by the law of the state in which the damage happened. Tratado de Montevideo: “La capacità delle persone è regolata dalle leggi del loro domicilio”, this is in favor of integration of immigrants, political choice. In other countries like ours they try to impose the national law. Protocol on the law applicable to maintenance obligations: Maintenance obligations shall be governed by the law of the State of the habitual residence of the creditor. Examples from EU regulations: Rome I regulation on the law applicable to contractual obligations, Article 3- Freedom of choice: A contract shall be governed by the law chosen by the parties. ​ Regulation 2016/1104 in matters of the property consequences of registered partnerships, Article 26: in the absence of a choice-of-law agreement pursuant to Article 22, the law applicable to the property consequences of registered partnerships shall be the law of State under whose law the registered partnership was created. Structure of the choice-of-law rule:​ -subject matter i.e. legal category ​ -verb (often in passive form) -reference to a specific connection (i.e.: connecting factor) Classical or Savignian rule: The rule that we have just seen is the classical rule in PIL that we may call conflict rule. It is also called Savignian rule, because it reflects the thought of Savigny: a rule that identifies the applicable law, by placing the legal system connected to the factual situation on a foot of equality and by choosing the one which offers the most adequate connection with the fact/relationship: it is considered as a “bilateral rule” Bilateral: the rule may refer to foreign law or to domestic law 20/2/2025 Universal vs. Specific Factors in Legal Systems Some legal principles are universally applicable. ​ Different legal systems may have unique connecting factors. FUNCTION OF CONNECTING FACTORS Rules govern specific facts or relationships: they identify which state's law is most suitable for regulation. Suitability depends on perspective and policy reasons. HISTORICAL CONTEXT: Past rules favored husbands over wives. ​ For children with parents of different nationalities, laws often favored the father's nationality (which is now considered unconstitutional). LEGISLATIVE CONSIDERATIONS: Connecting factors must be logically chosen, not randomly. Legislators have freedom of choice, but it must be rational. (Example of French article 3 c.c: laws concerning the status and capacity of individuals govern French people even if they live abroad. This is the idea of maintaining a legal link with French people living abroad, this choice depended on new establishment in France of citizenship. The revolution brought a new idea of citizens that were granted with many rights, French that live abroad must maintain their own rights. A political choice. This is a unilateral rule, it concerns only French people. But French have bilateralized it. If French law governs French, even residing abroad, then Belgian law governs Belgian residing in France) OTHER POSSIBLE METHODOLOGIES: The classical rule of PIL is still the most common form of rule dealing with international relationships. However, there are other possible methodologies adopted by the legislator or followed by judges and other authorities in dealing with PIL issues. ​ In order to specify the law applicable to private international situations, private international law uses three different types of rules: 1) conflict rules: merely locates an international private situation in a specific country in a fictitious manner. The conflict rule operates in two steps: -the conflict rule locates the private international situation in a specific country ​ -once the private international situation is located in a specific country, the law of that country must be applied in order to govern the substance of the private international law. 2)special material rules 3) extension rules Material rules: these rules provide a direct, immediate and substantive legal response to private international situations (substantive law approach). They do not refer to the law of any country. These rules exclusively regulate very specific aspects of private international situations. They are rare in European private international law. Extension rules: these rules extend the special scope of application of certain substantive rules of domestic law, thus making them applicable to some special private international situations. Their sole purpose is to determine the special scope of application of the rules of the law of the country whose authorities are hearing the case. They use a unilateralist technique. In other words, extension rules only deal with the spatial scope of application of the law of the forum: this is why they are considered unilateral. They are extremely rare in European private international law. For example: Italian copyright law applies to all publications published in Italy. The Italian judge will resort to Italian law even if the book is written by a foreigner or has other international connections. This rule extends the scope of the Italian copyright law. THE LEX FORI APPROACH: it is the law of the court or the authority dealing with the case, i.e. the local law. We may consider as lex fori Italian law if we consider an issue from the Italian perspective, or Belgian law if our perspective is Belgian. We may also take a European perspective (when matters are governed by EU rules). The lex fori approach: -our law is better than the others -applying our own law is a good idea, which of course it is not (at least not always) However, in specific cases the application of the lex fori may be dictated by relevant interests of the state, as we will see. RATIONALE OF CONFLICT RULES Why should we apply foreign law to an international situation? Many theories Binding character of conflict rules: conflict rules, and specifically EU conflict rules are binding. Consequently, the courts of member states must apply European conflict rules in any case, even if their application has not been invoked by the litigants. These parties cannot disregard the European conflict rule when applicable either. GENERAL PART OF P.I.L: operating rules There are general aspects that we should solve each time that we apply a conflict rule. This is a list: -characterization -incidental question ​ -change of connecting factor over time -evasion of the law -renvoi -application of the law of a state with more than one legal system -public policy -proof of foreign law​ General part of private international law, in Italian we call them norme di funzionamento. Eight possibility of general rules, for what concerns international conventions and EU regulation most of this questions are part of the instrument itself. If we look at an international convention or Eu regulation of PIL we find a very long instrument. It’s quite complex to look at these instruments, if you don’t look with sufficient attention, you may not see the true meaning and application of the rule. 21/2/25 LEGGE N 218/1995: Riforma del sistema italiano di diritto internazionale privato Eu regulation (l n 201/2010) ha a similar structure to the italian law one. EU PIL is part of EU law: we should not think that because it’s a matter of PIL has a different character. Principle of primacy: EU law prevails on domestic law of the member States. As for international conventions, there are rules of coordination. Italy has adopted rules on the primacy of European law in 2001 on the Constitution in article 117 (la novella del 2001), it has since that day a precise law that states that Italian legislator is bound to the European rules. Italian legislator can’t make a law that is in contrast with European law rules, constitutional court will cancel the domestic law that contradicts with European and international law. IMMEDIATE APPLICABILITY PRINCIPLE: EU private international law rules are in force and are applied in the Member states with no need for ratification or other formulas of introduction into their legal systems. Before in Italy there was a problem because it produced regulation in the Italian official journal, the CJEU told you can’t do that if you do such thing interpreters will think these are Italian rules instead they must maintain the character of European rules. DIRECT APPLICABILITY PRINCIPLE: any person has the right to ask a judge of any member state to apply EU private international law rules. The Commission checks the respect of PIL rules in all member states. European private international law is applied by all authorities of the member states: the EU has no judges and no jurisdiction. ​ Consequently, the judges and other authorities of the member states must imperatively apply EU law. When a judge or other national authority of any member state applies EU law, he is not applying his national law but EU law. ​In such cases, the national judge operates as a European judge: he is on another level. THE MAIN ROLE OF THE REGULATIONS IN EUROPEAN PRIVATE INTERNATIONAL LAW EU private international law is mostly based on European regulations. ​ a) Regulations fully unify the rules of private international law for all member states. There is no risk of disparity of law between the member states caused by national laws implementing European law, as is the case with European directives. b) Regulations avoid the typical and cumbersome problems proper to international treaties such as reservations, denunciations, ratifications, etc. ​ c)Regulations enhance international legal certainty, as they allow individuals to directly invoke the rules contained in the Regulation before the State authorities. The latter are obliged to apply EU PIL Regulations of their own motion ​ d)Regulations save legal information costs, since individuals and legal operators do not have to consult both European regulation and national laws implementing the former: they need to be informed only and exclusively about European PIL. e) Regulations are interpreted directly by the ECJ through the “preliminary ruling on interpretation” which enhances their uniform application. INTERPRETATION OF EU PIL: it must be interpreted and applied in accordance with its own principles, instruments and hermeneutical tools. Such a mechanism should not be taken from the national law for any particular member state but should be autonomous, the decision of any national judge should always remember that it’s an EU regulation and must take into account the needs of a uniform application of this regulation. Example protection of minors, a very old convention just said protection of them without explaining who’s considered a minor. Another one said is that a minor what was it considered by the law of each member state. The newest one made in 1996 gives a precise indication of what is a minor. At the start the idea was to have a system without PIL, sometimes it happens there’s a judge that knows well PIL but it’s not chosen on the basis of the knowledge of this subject (but on the basis of the knowledge of EU law). INTERPRETATION must be AUTONOMOUS and UNIFORM. A legal notion in an EU PIL rule must be given the same meaning in all member States. This is attained by more than one method: -the instruments contain definitions, both positive and negative -some notion corresponds to notions already uniform in EU material law. -in case of doubts, it is possible to address the ECJ. METHODS OF INTERPRETATION: EU private international law provisions are interpreted on the basis of the literal meaning of their words, with a correct weighing of the official literal versions, in the different languages of the member states. Teleological interpretation: a decisive principle in the interpretation of European private international law. The interpretation must take into account the principles that inspire each of PIL instruments and the objectives pursued by each of these legal instruments (=dynamic interpretation not at the time of the adoption of the rules).​ There are different principles and different objectives in each EU PIL Regulation and the interpreter must pay attention to the particular context of the regulation in question. Specific features of EU conflict rules: the European conflict rules are erga omnes. They determine the law applicable to private international situations in any case, i-e whatever the nationality or residence of the litigants may be and whatever the law applicable to the case may be, even if that law is the law of non-EU (=third) country. Consequently, the national conflict-of-laws rules of the member states, although not repeated, are inapplicable for determining the law which governs private international situations in matters covered by European conflict rules (Granital: fenomeno di ritrazione). UNIVERSAL APPLICATION RULE: the law designated by these regulations shall apply whether or not it is the law of a participating member state. REGULATION 1104/2016: implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships ​ ARTICLE 20: universal application rule is the same. POLICIES OF EU PIL: EU PIL is a very political subject. The adoption of uniform provisions is dictated by: -the idea of facilitating the international life of companies and individuals (favour for international life of persons) -the elimination of obstacles in the establishment of the area of freedom, security and justice (favour for EU freedoms) ​ -the integration of people of different nationalities in the countries where they live (= favour for integration) SOURCES OF PRIVATE INTERNATIONAL LAW 1) Primary law: is set out in the Treaties establishing the EU: TUE and TFUE ​ 2)Secondary law: it is called that because it derives from primary law, which establishes the regulatory power of the secondary law. It is contained in Regulations, Directives, Decisions, Opinions and Recommendations as well as in other atypical and minor legal acts such as white and green papers. ​ It is also contained in international conventions signed by the EU with other states or international organizations, agreements concluded between member states and agreements between EU institutions. 3)Subsidiary law: this is composed of legal materials not provided for in the European Treaties as sources of EU law stricto sensu. It is the case law of the Court of Justice of the EU: general international law and general principles of law. These can be: a)general principle common to national laws of the member states and compatible with EU objectives, such as the principle of legal certainty, due process, principle of proximity b)general principles of law which are drawn from some specific national laws ​ c)general principle specific to EU law, such as the principle of solidarity between member states, institutional balance and primacy of EU law over the national laws of the Member states. 27/2/2025 ​ POLICIES OF EU PIL: EU PIL is a very political subject, the EU never made a mistery of its objectives, the European council which is the political organ of the EU, has never made a mystery that they relied on PIL to create the area of security, freedom and justice, to make a better integration of individuals circulating in member states. PIL is an accessory to the establishment of the area of freedom, security and justice. Treaty of Amsterdam: entered into force in 1999, aimed to improve the functioning of the EU considering its expansion and to enhance cooperation among member states. ​ Tampere Act: officially known as the Tampere Declaration, was adopted during the European Union's Tampere Summit in October 1999. It outlines the EU's commitment to establishing a common area of freedom, security, and justice. The declaration emphasizes the importance of cooperation among member states in areas such as immigration, asylum, and judicial matters. ​ The adoption of uniform provisions (objective of harmonization, codification it gives legal security and facilitates the life of international persons and companies) is dictated by: -the idea of facilitating the international life of companies and individuals (= favor for international life of persons) -the elimination of obstacles in the establishment of the area of freedom security and justice (=favor for the EU freedoms) ​ -the integration of people of different nationalities in the countries where they live. FAVOUR FOR SOME CONNECTING FACTORS: the choice of connecting factors is a tool for the attainment of the specific purposes of EU PIL provisions: ​-habitual residence: This is a factual connecting factor, that could be understood as the Country in which a person has his/her centre of interests. ​ It favors integration: all individuals living in the same Country are governed by the same law. This connecting factor now replaces nationality or domicile in many new provisions: this is true in domestic legal systems, conventions and EU regulations. Habitual residence must be assessed in every particular case and could be different according to different issues. Example couple from Ecuador, they lived in Milan, Italian thinks that for personal matters is better to apply Ecuadorian law. European rules are the exact opposite, the link with their home country is cultural but not legal, according to European rules they should be subject to the rules of the country where they have their habitual residence. That’s a political choice. -party autonomy: as a connecting factor was functional to the creation of strong sovereign States in the second half of XIX century based on the social identity of the citizens EU PIL is functional to the establishment of a space of justice, freedom and security, where EU citizens enjoy the freedom of movement and the other EU freedoms: accordingly, nationality progressively superseded by habitual residence, which is more functional to EU values. Both play a relevant role in EU conflict rules, whereas -nationality (which is the principal connecting factor in many domestic legal systems) plays in EU PIL a less relevant role, for many reasons. Party autonomy, i.e. power of parties to select the applicable law Some PIL rules provide that parties are allowed to choose themselves the applicable law. When the choice is made by one party in a non-contractual relationship, it may be called: professio juris This connecting factor has two important advantages: it favors flexibility, and it favors certainty. From the point of view of lawmakers: this is a useful connecting factor when none of the existing connections is convincing. The balance between private and public interests is also a prominent concern in adopting this connecting factor. A growing trend taken up by national, supranational and international Lawmakers For centuries, party autonomy was restricted to contracts. Now it applies in many other matters: succession; divorce; property matters between spouses and partners... But in matters other than contracts, the choice is usually restricted to the law of countries having a connection with the relationship.​ RIGIDITY OF CONNECTING FACTORS AND ESCLAPE CLAUSES ​ In order to chose the “better law” there is a trend towards connecting factors leaving some discretion to the interpreter. However, rigid connecting factors are preferred in EU PIL Most regulations have exception clauses based on the closest connection of the case to a particular State: however, these clauses are intended only for particularly complicated cases and rarely applied. They should be considered exceptions, because they contradict certainty of law. Rome I regulation on the law applicable to contractual obligations: article 8 that talks about individual employment contracts. Article 21” General rule”. ​ THE FREE CIRCULATION OF DECISIONS intra EU: leading principle in the purposes of the EU. It concerns only EU decisions. These rules are dominated by a key principle: -a decision rendered in a member state is not regarded as a “foreign” decision in the other member states -on the contrary, it is considered a decision rendered by authorities participating in the European area of Justice These rules emanate from a basic principle: as a general rule, any decision given by the courts of one Member state has legal effects in all the other member states, and only in exceptional cases - extremely serious cases- will the validity of such decisions be denied in the other member state. ​ DECISIONS RENDERED IN THIRD COUNTRIES Extraterritorial validity in the EU of decisions rendered by courts of third countries is still submitted to domestic rules of each member state. However, the EU has ratified, in the name of its member states: -the 2005 Hague Choice of forum Convention (Denmark and UK have ratified it) ​ -the 2019 Hague Judgements Convention NATURAL PERSON STATUS and NATIONALITY PERSONAL STATUS= legal matters relating to a natural person PERSONAL LAW= the law covering the personal status of an individual In the traditional PIL, some countries considered national law as the personal law, others considered domicile the personal law. EU PIL, for the time being, has no uniform rules: the personal status, accordingly, is submitted to the national rules of each member State. Italian law 218/1995: in Italy until the 1995 reform there was only one rule: ​ “lo stato e la capacità delle persone e i rapporti di famiglia sono regolati dalla legge dello Stato a cui esse appartengono” ​ Now there is a plurality of provisions in the Italian law. Personal status has been fragmented in different aspects. There are several legal categories that have replaced the large category which was employed before the reform: Article 20- Capacità giuridica delle persone fisiche ​ Article 21- Commorienza ​ Article 22- Scomparsa, assenza e morte presunta Article 23- Capacità di agire delle persone fisiche Article 24- Diritti della personalità: rule that closes the part of personal matters. NATIONALITY, DOMICILE AND HABITUAL RESIDENCE OF INDIVIDUALS ​ Nationality in choice-of-law is a traditional connecting factor, this is linked with the French civil code (adopted in 1804), it was made by Napoleon, there was the idea of the citizen at the center, led by the revolution, extremely strong in politics but also legal institutions. Article 3 code civil: Les lois concernant l’ètat et la capacitè des personnes regissent les Francais, meme resident en pays étranger. ​ Article 23 Italian law on PIL- capacità di agire delle persone fisiche: la capacità di agire delle persone fisiche è regolata dalla loro legge nazionale. The nationality of the natural person is determined according to the law of the country whose nationality the individual claims to hold. In order to ascertain whether a person holds the nationality of a particular country or not, the law of that country applies. EU: mutual recognition ​ Area of Freedom, Security, and Justice: Aim: eliminate obstacles to international life for individuals. Principle of Mutual Recognition: legal situations valid in one EU member state must be recognized in all others. Example: A legal status (like a surname) must facilitate free movement of people across member states. Marriage and Civil Partnership in EU Private International Law Governing Rules: marriage and civil partnership are governed by local (national) rules in each member state. NOTION OF MARRIAGE: defined as a legal institution, but varies by country. ​ In some countries (e.g., the UK), individuals can be considered married without a formal ceremony. Examples: In Italy, a church marriage is valid from a civil perspective if specific civil code articles are recited by the priest.A French couple married in Italy must consider the applicable law for civil validity. Lack of EU Definition: EU private international law does not define "family" or "marriage." These concepts are left to individual member states. ​ No EU conflict rules exist for determining the applicable law for marriage formation; national rules apply. SAME SEX MARRIAGE: legal in some countries (e.g., Norway, Sweden, Spain, Netherlands). Not allowed in others (specific examples may vary by country). RIGHT TO MOVE AND RESIDE FREELY WITHIN THE EU and SAME SEX MARRIAGES: EJC C-673/18 Coman Hamilton: it dealt with the case of a Romanian national who married an American national in Brussels. ​ They wished to move to live in Romania together, since they were spouses according to Belgian law. Directive 2004/38/EC recognizes the right of a spouse of a EU citizen to enter and reside freely in the member state where the EU citizen resides. The Romanian civil code prohibits same-sex marriages so the Romanian authorities denied the request. Against it the EC stated: WHAT IS A SPOUSE? The concept of spouse used by Directive 2004/38 is gender-neutral and may therefore include the same-sex spouse of the Union citizen concerned. This concept only operates for the purposes of Directive 2004/38. ​ FREEDOM OF MOVEMENT PREVAILS: If a Member state refuses the residence of a "spouse" on the grounds that same-sex marriages are not allowed in Romanian Law, the freedom of movement of European Union citizens would be infringed. The spouse who is a European citizen would be hindered in his or her right to move and circulate freely within the territory of the Member States (Article 21 TFEU). A European citizen would be deprived of the possibility of returning to the Member State of which he or she is a national, accompanied by his or her spouse. PUBLIC POLICY IS NOT A RISK: The Member State of destination may activate its public policy to prevent such movement of people in cases where there is a genuine and sufficiently serious threat affecting a fundamental interest of society. The Member State of destination is not forced to recognize a same-sex marriage validly celebrated in another Member State; same-sex marriages remain prohibited in the Member State of destination. Nevertheless, acknowledging the existence of such a marriage "for the sole purpose of granting the right of residence to a third-country national", does not adversely its national identity. The ECHR 1950 and ECJ case-law connection. Everything fits together. Case-law of the ECJ guarantees respect for private and family life (Article 7 and 8 ECHR1950). According to the ECtHR, a same-sex couple is a "family" and has the right to a "family life". A family living in one State has the right to move to another contracting State and to continue to be considered and to live as a "family" CASE 1: Marriage between two women in Spain and legal effects in Poland. A Polish woman marries a Canadian woman before a Spanish judge. Both have their habitual residence in Cuenca, Spain. Two years later, the two women move to live permanently in Warsaw. It is necessary to determine whether this marriage is existing and valid in Poland. Answer = The Polish authorities will reject the existence and validity of this marriage in Poland, because it violates Polish public policy. As a matter of fact, under Polish law marriage can only exist between a man and a woman. As a result, the matrimonial property regime of these two women does not exist in Poland; there are no maintenance obligations between the two women; and a divorce is not possible before the courts of Poland. This situation operates as a set of "obstacles to the free movement of persons within the European Union", prohibited by Article 21 TFEU. However, the Polish woman has the right to apply, in Poland, for family reunification with her spouse, the Canadian woman, with accordance to the Coman-Hamilton case-law ​ Polygamy: in some countries is legal, in others it’s illegal and criminalized, in others is illegal but not criminalized, in other it’s legally depending on province. ​ But polygamy in practice is quite rare, living in polygamous households is very uncommon in most places. Minimum legal marriage age for women: it depends on the countries, in some cases, by region within a country. Here are a few examples: United States: Most states set the minimum age at 18, but minors can marry with parental consent, and some states allow marriage at 16 or younger under certain circumstances. India: The legal age for women to marry is 18. United Kingdom: The minimum age for women to marry is 16 with parental consent; without consent, the minimum age is 18. RULES APPLYING TO PERSONAL AND PROPERTY EFFECTS OF MARRIAGE: when applying the EU regulations, however the notion of marriage is an autonomous notion, which must be intended uniformly in all the EU countries applying the uniform rules. ​ EFFECTS OF MARRIAGE: marriage produces two types of legal consequences: personal effects and property effects. 1)the law applicable to the personal effects of marriage is determined by the national conflict rules of each member state (in Italy: common nationality or place in which the matrimonial life takes place) ​ 2)the law applicable to the property effects of the marriage- the matrimonial property regime- is determined in accordance with the conflict rules included in Regulation 2016/1103 (matrimonial property regimes). DOUBLE OR MULTIPLE NATIONALITY: until the 60’s the idea of a person having more than one nationality was not acceptable. This is not true anymore; there’s not a legal rule that forbids double nationality. Today most legislations in the world admits that the child can acquire the nationality of the father and the mother, if a child has parents of different nationalities and one of the parents has multiple nationalities the child can get multiple nationalities at birth (reality which is growing). The same person can have different personalities, it must be decided which is the prevailing nationality for the purposes of private international law. Each member state decides the prevailing nationality of natural people in cases of multiple nationalities for the purposes of PIL. Normally, the member states prefer their own nationality (= a citizen cannot be considered as a foreigner) and, failing that, the nationality corresponding to the closest connection. 6/3 EU CITIZENSHIP: in some cases, some rules of PIL leave a person free to declare which is the nationality they prefer for a certain case, in other case member states are obliged to recognize certain aspects and freedoms. IT IS NOT A CONNECTING FACTOR. Example Mr. Micheletti an Argentinian men with a double nationality: Argentinian and Italian, he wanted to live in Spain and have the right to establishment there, he wanted to open there its own firm, he needed to be granted the right of establishment since he’s an European nationality. Spain authorities said no because from their perspective the Argentinian nationality was the prevailing one. The ECJ stated that Spain was free to consider the Argentinian nationality as the prevailing one but he needed to be granted the right of establishment since it’s an European rule not a private international one. The prevailing nationality perspective has to be applied only on the private international law perspective. DIVORCE, LEGAL SEPARATION AND NULLITY OF MARRIAGE NOTION OF DIVORCE: as a legal institution, it is almost universal (forbidden only in the Philippines-but this should change soon and in Vatican City) Hower it is quite different from one country to another. Each cultural area, conditionated by historical events, has one specific type of divorce. ​ In some countries repudiation exists. In others an objective cause is required for divorce. In other divorce without a cause is possible by a single request made by only one of the spouses. In others, divorce may be granted without the intervention of a judge. IN EU PIL: REGULATION 2019/1111 (so called Bruxelles II-ter regulation which replaces two previous regulation of 2000 and 2003) on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction. This regulation applies to all marriages and divorces, according to the definition of marriage and divorce applied in each state. ​ This Regulation establishes uniform jurisdiction rules for divorce, legal separation and marriage annulment as well as for disputes about parental responsibility with an international element. It facilitates the circulation of decisions, as well as of authentic instruments and certain agreements, in the Union by laying down provisions on their recognition and enforcement in other Member States. SCOPE OF APPLICATION: it applies only in intra-EU cases (as defined by its rules). Several grounds of jurisdiction, based on strong connections: ​ -the habitual residence of the spouses or of the defendant -the common nationality of the spouses (even in case of plural nationality) ​ -the habitual residence of the applicant (if the residence has a certain duration) ​ When jurisdiction of member state cannot be established under these rules, domestic rules of each member state apply. If the local rules grant jurisdiction the national courts enjoy jurisdiction. ​ But jurisdiction is not universal: it is possible that every court in every member States do not enjoy jurisdiction. Spouses will have to address a non-EU-court. ​ EXAMPLES: a French and a Spanish living in Venezuela, they don’t live in the EU, they don’t have a common nationality, jurisdiction is governed by domestic law. ​ -Two Chinese living in Belgium, the Regulation applies in Belgian courts ​ MAIN FEATURES OF THE REGULATION Alternative grounds of jurisdiction: possibility of forum shopping. Rationale: favor divortii is here to stay. The fact that spouses can turn to the courts of more than one member state makes cross-border divorce simpler and more efficient. It promotes access to the courts in the European area of justice. Examination as to jurisdiction made by the court (ex officio control): the jurisdiction will not be checked at the stage of recognition ​ Rationale: mutual trust National rules on jurisdiction are still standing: when jurisdiction cannot be established in any of the 26 member states, domestic rules apply. APPLICABLE LAW: THE ROME III REGULATION ​ Regulation 1259/2010 = Rome III regulation, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. This Regulation applies in 17 member states: it was adopted with the procedure of enhanced cooperation. States that didn’t want to participate to this regulation were the ones that treated divorce with more favor, for example Finland. The member state that don’t apply the regulation and still apply their own domestic rules. The Regulation governs applicable law; it works together with Regulation 2019/1111, in intra-EU cases, but it applies also in extra EU cases. ​ It does not apply to questions of: - the legal capacity of natural persons; ​ - the existence, validity or recognition of a marriage; - the annulment of a marriage; - the name of the spouses; - the property consequences of the marriage; - parental responsibility; - maintenance obligations; - trusts or successions. ​ UNIVERSAL APPLICATION: this regulation applies in the 17 member states to all international divorces: its rules are erga omnes. Rationale: a)it is very difficult to distinguish purely intra-EU and extra-EU cases b)rules on jurisdiction cannot be universal because we cannot impose our rules to other states of the world (jurisdiction is an exercise of sovereignty) but we can apply the provisions of every legal system of the world, without raising any issue with the State concerned (= if we apply Peruvian law, Peru has no objections) CONNECTING FACTORS IN DIVORCE AND LEGAL SEPARATION ​ First: choice of law made by the spouses. They’ll choose the easiest, but they cannot choice of any law of the world, it must be the law of a country which has a strong personal connection with both or with one of the spouses. ​ The choice must be made in writing and can be made at any moment, even at the start of the divorce proceedings. Second: objective connecting factors. In the absence of a valid choice, the regulation has a list of subsidiary connecting factors, starting with the law of the habitual residence of the spouses WARNINGS 1) Spouses can agree on the applicable law, in the list of laws permitted, but they cannot agree on the competent court 2)Regulation Rome III covers only divorce (the legal ending of marriage): for maintenance, property matters, custody of children others instrument must apply (fragmentation) 07/03/2025 ​ PUBLIC POLICY “A leap into an unknown dark space”: Traditional bilateral conflict rules refer to foreign legal systems without knowing their content. Applying foreign law could be described as “a leap into an unknown dark space” (Bogdan), saut dans l’inconnu (Batiffol), Sprung ins Dunkle (Raape). ​ Potential risk of unacceptable results… The applicable foreign rule could be unfair, unjust or even repugnant. ​ It could for example discriminate against people of a certain religion, race or gender, or violate human rights in some other respect. ​ Conflict rules apply in relation to all legal systems without any geographical limitation, creating a non-negligible potential risk of unacceptable results. ​ Public policy clause: in order to avoid this risk, PIL of all countries, or of international and European instruments, contains an explicit (or implicit) reservation, according to which: - foreign law will be refused application, ​ - whenever its application would be manifestly contrary - to the fundamental principles (public policy, ordine pubblico, ordre public) of the forum country. Examples of Public Policy provisions in domestic legal systems: ​ Italian Law: Art. 16 - Ordine pubblico - 1. La legge straniera non è applicata se i suoi effetti sono contrari all'ordine pubblico. – Spanish Law: Art. 12.3: En ningún caso tendrá aplicación la ley extranjera cuando resulte contraria al orden público. Dutch Law: Article 10:6 Conflict with Dutch public order - Foreign law shall not be applied to the extent that the application thereof is obviously incompatible with public order. Examples in international and supranational instruments: Rome I Regulation on contracts: Article 21 - Public policy of the forum - The application of a provision of the law of any country specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum. 2007 Hague Protocol on the Law Applicable to Maintenance Obligations: ​ Article 13 - Public policy - The application of the law determined under the Protocol may be refused only to the extent that its effects would be manifestly contrary to the public policy of the forum. FUNDAMENTAL PRINCIPLES: only the really fundamental principles of the lex fori deserve the protection afforded by the public policy reservation, and the reservation is to be used only if the violation of the forum’s public policy is manifest, i.e. obvious. This assessment must be made on a case-by-case reasoning. Not all mandatory provisions are also expression of a “fundamental principle”. Fundamental principles may differ in different Countries, but also in different periods of time. Examples: Rules that discriminate between genders: in Shariah, women can marry only Islamic men, whereas men can marry women of any «religion of the book». Rules that do not respect employees’ rights: in Italy, foreign rules permitting dismissal without just cause and without notice are contrary to public order Rules that are contrary to the best interests of the child: foreign rules establishing custody rights of children without regard to their best interests are contrary to public policy 13/3/25 ​ FREE CIRCULATIONS OF DECISIONS: free circulation for decisions intra-EU. These rules are dominated by a key principle: a decision rendered in a member state is not regarded as a “foreign” decision in the other member States. ​On the contrary, it is considered a decision rendered by authorities participating in the European area of Justice. These +, any decision made by the courts of one member state has legal effects in all the other member states, and only in exceptional cases- extremely serious cases- will the validity of such decisions be denied in the other member state. DECISIONS RENDERED IN THIRD COUNTRIES -Extraterritorial validity in the EU of decisions rendered by courts of third countries is still submitted to domestic rules of each member state. -However the EU has ratified in the name of member states: -the 2005 Hague Choice of forum convention (Denmark and UK have ratified it) ​ -the 2019 Hague judgements Convention THE REGULATION 1215/2012 The most important legal instrument in European private international law: the Regulation covers a broad material area of litigation in the world of civil matters and business. It applies in all 27 member states. Consequently, it is the most applied legal set of private international law rules in the EU. The rules of the Brussels I-bis Regulation distribute international jurisdiction among the courts of the Member States. Sometimes the Regulation merely indicates the member state whose courts have jurisdiction to heart the case e.g the Italian courts, the Irish courts, the German courts, etc. The rules of the Brussels I-bis Regulation distribute international jurisdiction among the courts of the Member States. Sometimes, the Regulation merely indicates the Member State whose courts have jurisdiction to hear the case, e.g. the Italian courts, the Irish courts, the German courts, etc. On other occasions, the Regulation determines which specific court has jurisdiction in the European Union to hear the case: e.g. the courts of Paris, or Athens. JURSIDICTION: types of Problems Addressed: -jurisdiction -choice of law -recognition and enforcement of foreign judgments Jurisdiction Rules: define when courts in one country can hear cases involving connections to another country. It help courts determine their own authority to handle specific cases. THE EU RULES ON JURISDICTION IN CIVIL AND COMMERCIAL MATTERS: ​ Regulation 1215/2012, so called «Brussels I-bis» or «Brussels I-recast». ​ Why Brussels? Because it is the conversion into a regulation (regulation 44/2001) of an existing convention, the Brussels Convention of 28 September 1968. Why «I»? Because another regulation on matters of jurisdiction, but concerning family issues, was enacted in the same time and became «Brussels II». ​ Why «bis» or «recast»? Because it is a revision of the 44/2001 regulation. History of the Brussels I-bis regulation: In 1968, the first six Member States adopted the Brussels Convention of 28 September 1968. The Convention quickly became a very useful tool for the establishments of the “common market”. All the new Member States (Ireland, Denmark, UK, Greece, Spain, Portugal, Sweden, Finland, Austria) acceded to the Convention. In 2001, the Convention was converted into Regulation 44/2001. ​ In 2012, the 44/2001 Regulation was revised, and the new Regulation 1215/2012 was enacted. THE LUGANO CONVENTION: in 1988, the States of the EFTA (European free trade association) and the States of the EU adopted the Lugano Convention STRUCTURE OF THE BRUSSELS I-BIS REGULATION: 41 recitals, Chapter I – Scope and definitions Chapter II – Jurisdiction Chapter III – Recognition and enforcement Chapter IV – Authentic instruments and Court settlements ​ Chapter V – General provisions Chapter VI – Transitional provisions Chapter VII – Relationship with other instruments Chapter VIII – Final provisions JURISDICTION: The Brussels I-bis rules on jurisdiction have the following character: ✔ a general rule (domicile of the defendant); ✔ some special rules; ✔ protective rules (for insurance, consumers and employment matters); ​ ✔ some exclusive rules; ​ ✔ a rule on prorogation of jurisdiction (choice of forum) ✔ rules on lis pendens and related actions (=connessione) GENERAL RULE (article 2.1): subject to this regulation, people domiciled in a Member state shall, whatever their nationality, be sued in the courts of that Member state. This rule corresponds to a general principle of law, expressed by the latin: actor sequitur forum rei. If a person is not domiciled in a member state, there are two possibilities: -the jurisdiction is based on another ground (special or exclusive jurisdiction, prorogation or jurisdiction) -in the absence of other grounds, the Brussels I regulation does not apply and jurisdiction is governed by domestic rules. SPECIAL RULES: they provide additional grounds, the claimant can choose between the Court that enjoy jurisdiction thanks to the general rule (domicile of the defendant) or to the special rule (e.g. in contractual matters, the place of performance of the contract). Accordingly: possibility of forum shopping! Examples of special rules on jurisdiction In matters relating to a contract (art 7.1) A person domiciled in a member state may, in another member state, be sued: ​ a)in matters relating to a contract, in the courts for the place of performance of the obligation in question ​ b)in matters relating to tort, delict or quasi delict, in the courts for the place where the harmful event occurred or may occur. Other special rules concern civil actions in criminal proceedings, disputes concerning a cultural object, the operations of a company, trust or maritime matters. PROTECTIVE RULES ON JURISDICTION: -insurance contracts -consumers contracts -employment contracts These three matters have in common the need of protecting a weak party against the bargaining power of a professional party. EXCLUSIVE JURISDICTION: in a few specific matters, the EU legislator has conferred exclusive jurisdiction on the court of one, and only one, member state, because this court is considered to be the most adequate for dealing with that matter. Ex -right in rem over immovable property: the court of the country where the property is situated​ -validity of the companies or other legal entities: the court of the country where the legal entity has its seat. If the court of a member state does not respect these exclusive rules, the recognition of the decision can be refused ​ PROROGATION OF JURISDICTION Article 25: if the parties, regardless of their domicile, have agreed that a court or the courts of a member state are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that courts or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of the member state. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. This is the so called: choice of forum. FORM OF THE AGREEMENT: the choice of forum is an agreement between the parties; for its validity it must take a specific form, normally in writing. ​ The court of justice has validated a choice-of-forum agreed with a double click. The agreement conferring jurisdiction shall be either: a)in writing or evidenced in writing b)in a form which accords with practices which the parties have established between themselves c)in international trade or commerce (word that does not cover all international transactions, but only the ones between professionals involving international trade), in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by parties to contracts of the type involved in the particular trade or commerce concerned. Example: REGULATION 4/2009: on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. It introduces rules to facilitate the payment of cross-border maintenance claims. Such claims arise from the obligation to help family members and may include, for example, maintenance paid to a child or to a former spouse following divorce. The regulation applies to maintenance obligations arising from: - a family relationship; - parentage; - marriage or affinity. Jurisdiction in matters relating to maintenance obligations lies with: ​ - the court of the place where the defendant or the creditor usually lives or ​ - the court which has jurisdiction over the status of a person (a divorce for example) or parental responsibility, if these relate to the maintenance claim (provided that jurisdiction is not based solely on the nationality of one of the parties). Example: regulation on succession n 650/2012. Article 4: general jurisdiction. Article 5: choice-of-court agreement. Article 10: subsidiary jurisdiction. Article 11: forum necessitatis. RECOGNITION AND ENFORCEMENT OF JUDICIAL DECISIONS We need to give effect to a legal document coming from a foreign country. The exercise of jurisdiction is an exercise of sovereignty that has territorial limitations, most of the countries accept to give legal value to other countries’ decisions. Many attempts to have a document similar to the NY convention were unsuccessful. We still rely on some European instruments like the Brussel I regulation+ the Lugano convention and conventions on specific topics. Each state of the world has rules on recognition and enforcement of foreign judgements; however countries sometimes are suspicious of foreign judges, they could be corrupted or favor their citizens over foreign citizens. The rules have quite a few checks, it may be difficult to enforce a foreign decision. ​ The advice is to look for a convention. There are many different rules: DOMESTIC RULES: applicable in the absence of international or supranational rules, we call them residual application. -International conventions on specific topics (divorce, protection of children, maintenance)+ 2019 Hague Convention and 2005 Choice of forum convention ​ Bilateral conventions -EU regulation (Brussels I-bis, Brussels II-bis, Successions and wills, maintenance+ Lugan Convention) -NY Convention 1958 (on arbitration) ARBITRAL DECISION OR NATIONAL JUDGEMENT The decision is an arbitral award? Yes, we have the NY Convention of 1958. But in many cases the reply will be no, it is a national judgement of source: we need to look at the origin of the decision: 1st step: decision pronounce in one of the EU/Lugano member states? 2nd step: if the answer to the previous question is NO we need to ask ourselves: does the subject matter falls into the scope of one of the existing instruments? If the answer is yes, it falls in Brussels I-bis/Lugano (civil and commercial matters), Regulation 650/2012 (succession and wills), Regulation 4/2009 (maintenance). But there’s the need to be cautious, we need to check the list of member states participating in the regulations. The only two regulations that all European member states have are the Brussels II regulations and regulation 4/2009 on maintenance. When the EU/Lugano rules apply, we identify and apply the applicable rules. In some cases, we may have to apply two or even three different instruments for the recognition of the same judgement. Example, a divorce decision pronounced by a French court with orders on maintenance and on property matters will be submitted to: divorce (Bruxelles II-bis regulation; maintenance-regulation 4/2009; property matters-regulation 2016/1103). This is a consequence of the fragmentation of EU PIL rules. DECISION ISSUED IN A NON EU/Lugano State/ matter not covered by any EU regulation: -if the reply was NO the first and/or the second question: check if there is an international convention (multilateral or bilateral available) examples 1996 Hague Convention on the protection of children (57 contracting states); 1970 Hague Convention on the recognition of divorces, that applies in cases with Albania, Australia, Denmark, Egypt, Moldova, Norway, Switzerland and the UK (post Brexit!). -2005 Hague Convention on choice of forum that applies in all EU member states+ Albania, Bahrein, Macedonia, Mexico, Moldavia, Singapore, Switzerland, Ukraine and UK (post Brexit!). BILATERAL TREATIES: there might be a bilateral treaty that could be useful in a particular case. Italy has a list on the website of the Ministry of foreign affairs (some treaties are too old to be useful in nowadays situations). ​ Often bilateral treaties are very old and not adequate: sometimes the domestic rules in force might be more useful and should prevail. Domestic rules on recognition and enforcement of foreign decisions will apply. ​ Each state has its own rules; States can be open or closed to foreign judgements. In Italy, articles 64-67 law 218/1995 will apply: recognition is automatic, and enforcement needs a special proceeding. The conditions to be met for the recognition are more severe than those required by EU/ international regimes. In particular, the jurisdiction of the foreign court will be checked. ARTICOLO 64 legge n 218/1995: si occupa del riconoscimento di sentenze straniere. La sentenza straniera è riconosciuta in Italia senza che sia necessario il ricorso ad alcun procedimento quando: a)il giudice che l’ha pronunciata poteva conoscere della causa secondi i principi sulla competenza giurisdizionale propri dell’ordinamento italiano b)l’atto introduttivo del giudizio è stato portato a conoscenza del contenuto in conformità a quanto previsto dalla legge del luogo dove si è svolto il processo e non sono stati violati i diritti essenziali della difesa. c)le parti si sono costituite in giudizio secondo la legge del luogo dove si è svolto il processo o la contumacia è stata dichiarata in conformità a tale legge d)essa è passata in giudicato secondo la legge del luogo in cui è stata pronunziata e)Essa non è contraria ad altra sentenza pronunciata da un giudice italiano passata in giudicato ARTICOLO 65 legge n 218/1995: regulates the recognition in Italy of foreign provisions, even non-jurisdictional ones, relating to the capacity of persons as well as to the existence of family relationships or personality rights. ​ Such provisions have effect in Italy when “they have been pronounced by the authorities of the State whose law is referred to by the provisions” of law 218/95 “or produce effects in the legal system of that State, even if pronounced by the authorities of another State, provided that they are not contrary to public order and the essential rights of defense have been respected”, as well as not being contrary to the requirements indicated in art. 64. ARTICLE 66 l n 218/1995: Foreign voluntary jurisdiction provisions are recognized without the need for any procedure, provided that the conditions set forth in Article 65 are met, as applicable, when they are issued by the authorities of the State whose law is referred to in the provisions of this law, or produce effects in the legal system of that State even if issued by the authorities of another State, or are issued by an authority that is competent on the basis of criteria corresponding to those of the Italian legal system”. ARTICLE 67 l n 218/1995: In the event of failure to comply or of contestation of the recognition of the foreign judgment or of the foreign provision of voluntary jurisdiction, or when it is necessary to proceed with forced execution, anyone interested may request ((the ordinary judicial authority)) the verification of the requirements for recognition. UNDER THE BRUSSELS I/ LUGANO SYSTEM: the regime applies in all member states (requested country) to decisions given in another member state (country of origin). It is still considered the prototype. AUTOMATIC RECOGNITION (no proceedings required) ARTICLE 36: “ a judgement given in a member state shall be recognized in the other member states without any special procedure being required” ​ AUTOMATIC ENFORCEMENT ARTICLE 39: “a judgement given in a member state which is enforceable in that member state shall be enforceable in the other member states without an declaration of enforceability being required” GROUNDS FOR REFUSAL: only 5 motives for refusing recognition and/or enforcement: a)incorrect service of the defendant when the judgement was given in default of appearance b)incompatibility with another decision given or c)recognized in the requested country. d)intervention of public policy, don’t rely of the intervention of public policy at the last moment don’t rely on it. If you’re losing a case in Slovenia for example do a transaction e)non respect of rules on jurisdiction in the following cases: i)when protective rules apply and the weak party is the defendant ​ ii)when exclusive rules apply. ENFORCEMENT: ARTICLE 46 on the application of the person against whom enforcement is sought, the enforcement of a judgement shall be refused where one of the grounds referred to in article 45 is found to exist AN ASSESMENT: the Brussels/Lugano system is very effective. The claimant should be careful at the beginning of the proceedings: 1) carefully considered the question of jurisdiction 2) comply with the rules on service of documents and recognition and/or enforcement will be granted without any obstacles! ​ However, if the foreign judgement is not favorable to our claim, it must be challenged in the country of origin. Trying to challenge a foreign judgement in the requested court can be extremely difficult, almost impossible.