Private International Law PDF

Conflicts of Jurisdictions and Laws. Rules of private international law. ======================================================================== Private International Law deals with "private international issues" which, due to their international character (i.e., having, at least, one "foreign ele...

Conflicts of Jurisdictions and Laws. Rules of private international law. ======================================================================== Private International Law deals with "private international issues" which, due to their international character (i.e., having, at least, one "foreign element": parties, contract, location\...), give rise to special legal conflicts. Indeed, these issues require that the courts having jurisdiction to hear the case be determined, as well as the Law applicable to those issues, and the legal effects or recognition in other jurisdictions of foreign court decisions ruled on those issues. The private nature of those international issues implies that the rules of Private International Law will only apply to **civil** and **commercial** matters in which individuals and/or corporations are involved. Only when the **State** (i.e., governmental administrations, agencies or departments, including local or regional authorities or institutions), or **IGO's** are acting in the private sphere as private subjects[, rules of Private International Law could be applied to them. ] Therefore, the first function of Private International Law is to provide with legal certainty in international private matters, determining, ex ante: 1. The court and competent jurisdiction to settle a dispute arising from private international legal issues (i.e., contentious jurisdiction) or to rule on a particular legal issue or legal fact in which there is no counterpart (i.e. voluntary jurisdiction) 2. The Law applicable to those legal issues 3. The legal requirements in order to give legal effects to foreign court decisions or other foreign legal documents, permitting to be recognized and enforce them in other jurisdictions (e.g., arbitral awards; certifications; administrative licenses or permits; attestations; affidavits; acknowledgments; POAs\...) Voluntary jurisdiction proceedings take place when the intervention of a judge is requested to authorize, validate or recognize legal facts, acts or situations for the protection of rights and interests in civil and commercial matters without there being a conflict between parties (e.g., judicial consignments/deposits; judicial auctions; conciliation acts; support measures for people with disabilities; emancipation; guardianship, administration, tutorship or curatorship\...) A conflict of jurisdiction arises if a dispute can be brought entirely or partly before two or more different courts or tribunals at the same time (i.e., International "lis pendens") because there are different "foreign elements" connecting the affair with different jurisdictions (e.g., parties, contract, location\...) In voluntary jurisdiction proceedings, it is difficult for jurisdictional conflicts to arise since there are no conflicting interests or claims between different parties and the doctrine of **"minimum contact"** is necessarily respected (i.e., the courts of a State can only hear those cases that have a clear connection with that State) and protected by means of conventional or statutory **"exclusive forums"**. A conflict of Laws results from two or more national Laws or legal systems which are different in substance but apply to the same or similar dispute, facts, acts or situations and whose application would lead to contrary court decisions, making them difficult to be recognized in other jurisdictions. So that a choice must be made between them. Rules of Private International Law are established at national (i.e., statutory Law) and international level (i.e., international treaties or conventions) **Private International Law** is the body of [rules, conventions, model laws, national laws, legal guides and other documents and instruments] that regulate private relations across national borders. Apart from the Law applicable governing the case (i.e. "material Law" or "substantive Law "), which may be different from the Law of the jurisdiction ("lex fori"), there are mandatory laws of the forum that shall be applied irrespective of the governing Law (i.e., procedural Law, public order and constitutional rights, security laws, criminal Law and administrative Law) Therefore, the Law applicable governing the case (i.e. "material Law" or "substantive Law ") will only consist of rules of private Law concerning civil or commercial matters and shall be applied even if different to the Law of the jurisdiction. That means that the Law applicable by a national court to a particular case, due to the relevance of the "foreign element" may be from another country. In those particular cases, national courts are entitled to enforce foreign Laws (i.e., "material Law" or "substantive Law ") in civil and commercial matters, whenever the Law applicable is not manifestly incompatible with the Law of the forum (i.e., constitutional rights or public order rules) However, the procedural Law (or "adjective Law") of the forum (i.e., civil procedural Law) which is the body of rules and principles governing the process by which a legal proceeding is handled, will be applied in all cases, irrespective of the material Law or substantive Law governing the case. International "lis pendens" is the situation in which parallel proceedings, involving the same parties, same object (i.e. claim, motion, relief or purpose of the proceedings) and the same cause of action (i.e., facts and legal background), are continuing in two different States at the same time. The reason parallel proceedings can take place is simply because there is more than one possible jurisdiction or forum competent to adjudicate the dispute. This competence permits a court or tribunal to dismiss or suspend its own legal proceedings, declining its jursidiction, in case of another parallel proceeding is opened before another court or tribunal. - For these purposes the relevance of the foreign element must be alleged by one of the parties (normally, the defendant), proving that a previous proceeding was opened before another jurisdiction. This situation is particularly usual in insolvency proceedings opened by different foreign creditors against the same company before different jurisdictions (e.g., Abengoa US) - Here the doctrine of "minimum contact" is crucial to determine for a court its own jurisdiction. The principle of "res iudicata" (i.e., matter judged by a final decision or final judgment) also serves purposes closely related to those of "lis pendens" -- to protect the defendants to have to defend themselves twice in the same matter, to prevent the waste of resources, and to establish legal certainty and predictability by avoiding conflicting decisions. Categories of forums ==================== The rules to determine the jurisdiction ("forums") are of great importance since, in most cases, they will determine as well the Law applicable as *"lex fori"* (i.e., the Law of the jurisdiction competent to hear the case), if there is no evidence of a more closely connection with another foreign or conventional Law applicable to the case (i.e., "*lex fori* rule") To these effects, according to "*lex fori* rule" that is a general Common Law principle followed by all national courts, even from the Civil Law tradition, including the Spanish Supreme Court, courts will ordinarily apply national material Law of the jurisdiction (*"lex fori"*) in absence of evidence of relevant foreign Law, unless defendant shows it would be inappropriate to do so (i.e., proving the foreign element) - Therefore, according to this principle, in any case in which foreign Law may apply, the Law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or certain other means. - In the absence of satisfactory evidence of foreign Law produced by the defendant, the court will apply the Law of the jurisdiction to such a case. We can distinguish between **exclusive forums**, **concurrent forum**, **optional** or **alternative forums** and **general forum:** Exclusive forums: ----------------- In general, but not in all cases (since they are also recognized multilaterally in international conventions on jurisdiction to some particular issues, such as public registries or rights "in rem" and immovable property according to the general principle "forum sitae"), they are established unilaterally at national level by jurisdictional statutory laws (i.e., laws determining the scope of federal and state court competence to preside over a given matter) in order to protect some particular national interests such as real property, succession and inheritance and the rights of own national citizens or companies, acting as plaintiff or defendant or claimant, or in childhood and family matters, or to protect national consumers, employees, victims of injuries by accident or negligence, or national corporations. Therefore, exclusive forums, established unilaterally at national level by statutory jurisdictional laws, [seek to guarantee that a national court will hear a particular case excluding other forums or Law applicable to one case.] However, some of those exclusive forums may provoke certain conflicts such as the lack of connection between the case and the forum (i.e., exceeding the "minimum contact" doctrine) and/or the Law applicable (i.e., ignoring the relevance of the "foreign element"), giving lieu to the exception raised by the doctrine of "forum non conveniens", and/or two or more jurisdictions competent at the same time (i.e., international "lis pendens"), and/or two or more national Laws applicable at the same time to the same case by different jurisdictions, and/or the lack of recognition and enforcement of the resulting judgments in other jurisdictions. "Forum non conveniens" is a doctrine based on the Common Law principle by which the courts of a country, despite the existence of a ground of jurisdiction to hear a case, at the request of the defendant (in general, a national citizen or company), may refuse to hear it, considering that there is another better located foreign jurisdiction more closely connected with the affair. - When a court of a Member State has international jurisdiction as established by EU Regulations or Conventions, the court must hear the case. It cannot divest itself of its own jurisdiction and transfer it to a court of a third State, that --in its view-- would be better placed to hear the affair, according to the doctrine of "minimum contact" or the foreign element test. However, it should be noted that this doctrine is often used abusively by Common Law courts (in particular by US federal courts) to favour or protect their own nationals or companies at their request, when a foreign Law or jurisdiction may be more beneficial to them, or, the case may be, to exclude or reduce a contractual or non‐contractual liability (e.g., amount of the compensation for damages, or lack of a particular legal institution providing penalty or compensation\...) When as a result of the application of exclusive forums, established unilaterally at national level by jurisdictional statutory laws, these kind of conflicts occur (i.e., forum non conveniens, international lis pendens\...), exclusive forums are called "exorbitant forums". Notwithstanding its main purpose is to protect national citizens and companies, "exorbitant forums" tend to have limited effectiveness in practice, because the ensuing judgments would likely not be recognized in other jurisdictions (i.e., foreign courts having probably also competence on the same case are not going to enforce them, to the extent that the minimum contact doctrine and/or the relevance of the foreign element have not been respected) Therefore these judgments cannot meet the mandatory requirements of the principle of effectiveness that every judicial judgment must pursue. Since the main purpose of a judicial decision is that it can be executed or enforced. In this order of things, for instance, [US, Switzerland and France have a mixed system to determine the jurisdiction of its courts and the Law applicable] ("lex fori"), based primarily on the nationality (i.e., exclusive forum) and/or secondarily on the domicile (i.e., concurrent forum) to protect their national citizens or companies (plaintiffs, defendants or claimants), which, in the combination of own "nationality" and own "domicile", disregarding other possible foreign contacts or elements (e.g., residence of the parties, or domicile of the defendant in other country, or the place where an accident occurs or a contract must be performed\...), results in the so‐called "exorbitant forums". Apart from national statutory laws and international conventions, exclusive forums may also be established by the parties in a contract, by means of the so‐called "forum clause" or "forum selection clause" or "forum and Law applicable selection clause", in where the parties in a contract may decide which jurisdiction and/or material Law will be competent or be applied respectively to hear present or future disputes or construe the terms and conditions of the contract or to determine its validity. The general rule is that courts will enforce this forum selection clause and/or Law applicable clause to the extent that it is not unreasonable burdensome to one party and the doctrine of the "minimum contact" has been observed. When the parties select an inappropriate forum and/or Law applicable, this forum and/or Law applicable selection clause will not be enforced by courts, triggering the so called "forum shopping" exclusion doctrine. - The widespread expression **"forum shopping"** means something similar to "going 'shopping' in search of the courts that will provide the most favourable legal solution" to an international private legal affair. Therefore, "forum shopping" comes up when the parties place a private international affair before the courts of a specific State, because they seek to achieve the application of a particular material Law ("lex fori") and benefit from the guarantees or advantages of a specific legal and jurisdictional system, but the doctrine of "minimum contact" is not respected or the selection of the Law applicable disregards the "foreign element". Obviously, this happens because the parties are aware that the [same affair can be solved in a different manner depending on whether it is brought before the courts of one State or another, and according to one Law or another.] To finish with the category of exclusive forums, there is a particular institution of private international Law giving lieu to the exclusive jurisdiction of courts of a specific State in those cases where no other courts have accepted its own jurisdiction, or they have dismissed it applying the doctrine "forum non conveniens", or when litigation before courts of other States is extremely burdensome for the parties. This institution is specifically contemplated in the EU Conventions and Regulations on Jurisdiction (under "Brussels I" system) Optional or alternative forums: ------------------------------- In general, these rules on jurisdiction are established at international level (i.e., conventions and treaties on private international Law) in order to prevent conflicts of Laws and jurisdictions resulting from exclusive forums provided by unilateral domestic rules on jurisdiction. They allow the plaintiff to bring an action before different courts or jurisdictions (i.e., optional forums) and submit the case to a particular governing Law (i.e., Law applicable) following the doctrine of the "minimum contact" and respecting the relevance of the "foreign element". **Main optional forums are:** ‐ Lieu where the affair, contract or business takes place or is going to be performed (in contractual matters), or lieu where damages, injuries or accident occur (in non‐contractual matters) ‐ Domicile or habitual residence of one of the parties (in contractual matters), regardless of nationality ‐ Domicile or habitual residence of plaintiff , claimant or victim (in contractual matters and non‐contractual matters), regardless of nationality ‐ Domicile or principal business place of the defendant (in contractual matters and non‐contractual matters), regardless of nationality. General forum ------------- Also established at international level (i.e., conventions and treaties on private international Law), it is a general rule of jurisdiction according to the legal principle of private international Law "actor sequitur forum rei" (the plaintiff or claimant must follow the forum of the thing in dispute or the forum of the defendant), known in almost all legal systems, by which the courts of the domicile of the defendant, regardless of his/her/its nationality, are competent in all contractual and non‐contractual matters. - In other words, a plaintiff who wishes to assert in court a right arising from a contractual or non‐contractual obligation has the option of bringing an action, at his convenience, before the court of the domicile or principal business place of the defendant. Therefore, the general forum operates sometimes as a principal forum; others, as an optional or alternative forum; or, the case may be, as a residual forum, when no other jurisdictions are competent to hear a case. The Law applicable ================== In order to specify the Law applicable to private international issues, private international Law uses three different types of rules: 1) Conflict rules; 2) Special rules of material Law or rules of private international material Law; 3) Extension rules. Conflict rules: --------------- Determine the State Law applicable to a private international issue (i.e., factual situation) using an indirect method of regulation. In fact, they do not provide a material solution to the case, but merely locate the case in a specific State (i.e., "multilateral approach") according to the relevance of the "foreign element" (i.e., connecting factor). Once the issue is located, the case must be ruled in accordance with the Law of that State (i.e., the material Law applicable) These rules to determine the Law applicable are similar to the rules used to determine the forum or competent jurisdiction: Lieu where the affair, contract or business takes place or is going to be performed ("lex loci") Lieu where damages, injuries or accident or event occur, or wrongful act or omission takes place ("lex loci") Lieu where real property is located ("lex loci rei sitae") ‐ Nationality of one of the parties. Domicile or habitual residence of one of the parties, regardless of nationality. Nationality of plaintiff , claimant or victim. Domicile or habitual residence of plaintiff , claimant or victim, regardless of nationality. Domicile or principal business place of the defendant, regardless of nationality. Rules of private international material Law ------------------------------------------- Provide a direct, immediate and substantive legal response to some private international issues (i.e., "substantive Law approach"). They do not refer to the Law of any State, they regulate directly the issue. An example, of this kind of rules are established in the Convention of Montreal for the Unification of Certain Rules for International Carriage by Air of 1999, in which the Law applicable is the Convention itself. Extension rules --------------- Extend the spatial scope of application of certain rules of domestic material Law (i.e., the "lex fori"), making them applicable to some private international issues. Therefore their [sole purpose is to determine the spatial scope of application of the material Law of a State whose courts are hearing a case.] They use then a unilateralist technique to determine the Law applicable based on the own rules of the Law of the forum. The most common rules of private international Law at national or conventional level, are the **conflict rules**. The material rules and the extension rules, are less common. The material Law applicable to a particular issue or factual situation shall determine, in particular: 1. The basis and extent of liability (contractual or non‐contractual) 2. The grounds for exemption from liability, any limitation of liability, and any division of liability 3. The existence and kinds of injury or damage which may have to be compensated and the compensation amount 4. The kinds and extent of damages 5. The question wether a right to damages may be assigned or inherited 6. The persons who have suffered damage and who may claim damages in their own right 7. The liability of a principal for the acts of his agent or representative 8. Rules of prescription and limitation, including rules relating to the commencement of a period of prescription or limitation, and the interruption and suspension of this period International conventions on private international Law ====================================================== **International conventions on private international Law are mainly seeking:** ‐ The harmonization of rules to be applied to conflicts of jurisdiction and Laws. ‐ The recognition and enforcement of foreign judgments, arbitral awards and public documents (e.g., certifications, administrative licenses or permits, attestations, affidavits, acknowledgments or POAs) ‐ Service abroad of judicial documents (e.g., summons, judicial notices, evidences or proofs, testimonies, writs, incidental decisions or judgments) and extrajudicial documents (e.g., invoices, notarial notices or eviction notices), that must be served on a party. ‐ Taking of evidence abroad International organizations involved in private international Law ================================================================= The Hague Conference on Private International Law (HCCH) -------------------------------------------------------- Is the world organization for cross‐border cooperation on civil and commercial matters. It develops conventions, principles, guidelines and model laws in various areas of private Law, addressing topics ranging from issues such as choice‐of‐law rules (i.e., Law applicable) and jurisdictional rules (i.e., forum selection) or arbitration agreements to recognition of foreign documents, arbitration awards or judgments. Main conventions on private international Law adopted by HCCH are the following: ### ‐ The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents ("Apostille Convention") of 1961, which facilitates the use of public documents abroad. The purpose of the Convention is to abolish the traditional requirement of legalisation, replacing the often long and costly legalisation process with the issuance of a single "Apostille" certificate by the Competent Authority appointed as such in the Convention by the Contracting Party in the place where the document originates. The Convention has over 125 Contracting Parties, and has become one of the most widely applied multilateral treaties in the area of legal cooperation. ### ‐ The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Service Convention") which provides for the channels of transmission to be used when a judicial or extrajudicial document is to be transmitted from one Contracting Party to the Convention to another Contracting Party for service in the latter. The Convention establishes a main channel of transmission via a designated Central Authority in the Convention itself by every Contracting Party, as well as alternative channels of transmission. The Convention deals primarily with the expedient transmission of documents; it does not address or comprise substantive rules relating to the actual service of process. ### - The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters ("Taking of Evidence Convention") which establishes two methods of cooperation between judicial authorities of States Parties for the taking of evidence abroad in civil or commercial judicial matters intended to be used in judicial proceedings, overcoming differences existing between Civil and Common law systems: via (i) Letters of Request (Chapter I), or via (ii) diplomatic or consular agents or commissioners authorised by the State of origin (Chapter II). To this purposes the Convention provides for a system of judicial Central Authorities appointed by the Contracting Parties in the Convention. Central Authorities' main role is to receive Letters of Request under Chapter I and transmit them to the relevant judicial authority competent for their execution according to the national procedural Law of the State of destination. Contracting Parties may also designate authorities from which permission must be sought for the purpose of taking evidence under Chapter II by diplomatic or consular agents or commissioners authorised by the State of origin. In this last case the procedure of taking evidence may be carried out according to the national procedural Law of the State of origin. ### ‐ The Hague Convention on International Access to Justice ("Access to Justice Convention") which ensures that nationals or habitual residents of a Contracting Party to the Convention have non‐discriminatory access to justice in civil and commercial matters. This includes with respect to legal aid, including the provision of legal advice; exemption from a security, bond or deposit of any kind that is required by reason of their foreign nationality, and right to obtain copies or extracts from entries in public registers and court decisions in any other Contracting Party, on the same terms and conditions as its nationals. ### ‐ The Hague Convention on Choice of Court Agreements (i.e., forum selection clause) which **seeks to ensure the effectiveness of these agreements in transnational cases**. It does so by ensuring that parties' choice of jurisdiction in contract "forum selection clauses" or "jurisdiction clauses", is upheld by courts of States Parties to the convention. ### ‐ The Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters ("Judgments Convention") that replaces to some signatory States the previous convention on the same matter of 1971 still in force. This Convention , facilitates the circulation of judgments among its Contracting Parties by establishing conditions for recognition and enforcement, and possible grounds for their refusal. The Convention provides certainty and predictability for those operating in transnational civil or commercial situations. This ensures that a successful party will have a meaningful judgment, enhancing access to justice by reducing timeframes, costs, and risks. It also allows a plaintiff to make an informed decision as to where to initiate proceedings, taking into account where a judgment will be recognized and enforced. The Convention applies to the recognition and enforcement of judgments in civil or commercial matters (Art.1) , including consumer protection and individual employment contracts, excluding certain matters from its scope, such as the status and legal capacity of natural persons, privacy, family Law matters, insolvency, intellectual property, and certain anti‐trust matters (Art. 2(1)). In addition, it applies neither to arbitration and related proceedings (Art. 2(3)) The main rules set forth to determine jurisdiction are established in an indirect manner on the bases established for recognition and enforcement of judgments. These rules are in short the following: ‐ Exclusive forum: for rights in rem and contractual or non‐contractual liability on property, the State where immovable property is situated, according to the principle "forum sitae". ‐ General forums: State of habitual residence or principal place of business of the defendant (if a company) or branch, agency, or establishment without legal separate personality; State where the performance of a contractual obligation takes place, or may take place; and the State where the wrongful act or omission, or event, causing harm or damages occurred, irrespective of the place where the damage or harm or the indirect consequences of those acts, omissions or events occurs. Apart from these general Conventions on jurisdiction and judicial affairs in civil and commercial matters, the Hague Conference has adopted particular Conventions on child and family Law. These are the following: ### ‐ The Hague Convention on the Recognition of Divorces and Legal Separations ("Divorce Convention") which aims to facilitate the recognition in one Contracting State of divorces and legal separations. It assures divorced and separated spouses that their new status will receive the same recognition abroad as in the country where the divorce or separation is obtained. The Convention thereby simplifies the possibility of remarriage and clarifies the legal relationship of the couple concerned -- a factor that can also prove very important in relation to wills and successions. The general rule (i.e., general forum) for recognition is based on the habitual residence or domicile of the respondent (i.e., defendant), at the date of the institution of the proceedings in the State of the divorce or legal separation. Or optionally (i.e., optional forums), the habitual residence or domicile of the petitioner (i.e., plaintiff) in that State if it is also the habitual residence or domicile of the respondent, or both spouses were nationals of that State. ### ‐ The Hague Convention on the Civil Aspects of International Child Abduction (Child Abduction Convention) which seeks to protect children until the age of 16 from the harmful effects of wrongful removal and retention in a State Party, outside of the State Party of their habitual residence, by providing a procedure to bring about their prompt return and ensuring the protection of rights of access and custody. A judicial return order is not a decision on the merits (i.e., grounds) of the rights of custody or access. It is simply a judicial order that the child be returned to the jurisdiction of habitual residence in accordance with the rights of custody and access previously ruled under the Law of the State of that jurisdiction. For the purposes of this Convention: 1) "Rights of custody" include rights relating to the care of the person of the child and, in particular, the right to determine the child\'s place of residence; 2) "Rights of access" shall include the right to take a child for a limited period of time to a place other than the child\'s habitual residence. An application for a return order requires the applicant to establish the following: 1) That the child was habitually residing in the State Party which is issuing the order (Art.4); 2) That the removal or retention of the child constituted a breach of custody rights attributed by the Law of that State Party (Art. 3(a)); 3) And that the applicant was actually exercising those rights at the time of the wrongful removal or retention (Art. 3(b)) For these purposes the Convention provides for a system of Central Authorities appointed in the Convention by all Contracting Parties in order to enforce the judicial return order issued by another State Party. ### - The Hague Convention on Protection of Children and Co‐operation in Respect of Intercountry Adoption (Adoption Convention) Which protects children and their families against the risks of illegal, irregular, premature or ill‐prepared adoptions abroad by establishing a procedure of control, certification and recognition among the States Parties of adoption proceedings. This Convention, which operates through a system of national Central Authorities, reinforces the UN Convention on the Rights of the Child and seeks to ensure that international adoptions are made in the best interests of the child and with respect for his/her fundamental rights among the States Parties. It also seeks to prevent the abduction, the sale of, or traffic in children in the States Parties. Moreover, the Adoption Convention achieved a major breakthrough in establishing a system of automatic recognition of adoptions made in accordance with the requirements, principles, guarantees and rules of the Convention. Every adoption certified to be made in accordance with the Convention is recognized "by operation of Law" (i.e., "ex lege") in all other Contracting Parties, eliminating the need for a procedure for recognition of adoption decisions or re‐adoption in the receiving State. The United Nations Commission for International Trade Law --------------------------------------------------------- (UNCITRAL) established by a resolution of the UN General Assembly, is an active vehicle for some of the most significant work in the harmonization of commercial Law. In addition to conventions, furthers the harmonization of international commercial law through model laws and legal guides designed to inform domestic legislative drafters. Two main international instruments were promoted inside UNCITRAL: ### ‐ The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York" Convention) which establishes as the only requirements for said recognition and enforcement the supply of the duly authenticated original award or a duly certified copy thereof, and the original arbitration agreement or a duly certified copy thereof. ### ‐ The United Nations Convention on Contracts for the International Sale of Goods (CISG) is an example of private international material Law, as the Convention itself is the Law applicable to the formation of a contract of international sale of goods and the rights and obligations of the parties thereto. The International Institute for the Unification of Private Law -------------------------------------------------------------- (UNIDROIT) traces its origins to the League of Nations in the interwar period, and is today an autonomous international organization active in modernizing, harmonizing and coordinating private and in particular commercial Law, and to formulate uniform Law instruments, principles and rules. One of the best‐known accomplishments of UNIDROIT is the creation of the UNIDROIT Principles of International Commercial Contracts derived from various legal systems, to be used by private parties as the Law governing their contracts, as a codification of rules of lex mercatoria for arbitration proceedings, and as a supplementary source in conjunction with the CISG. Like the CISG, those principles operate as an example of rules of private international material Law. The European Union (EU) ----------------------- Harmonizes the private international Law of its Member States through the development of conventions, directives and regulations on jurisdiction and Law applicable. Three main systems on jurisdiction and Law applicable must be distinguished: Brussels I, Rome I and Rome II. ### Brussels I consists of the following instruments: ‐ The Brussels Convention on Jurisdiction and the Enforcement of judgments in civil and commercial matters of 1968. ‐ The Lugano Convention on Jurisdiction and the Recognition and Enforcement of judgments in civil and commercial matters of 1988, amended in 2007 by the Treaty of Lisbon, bringing together 26 EU Member States and the EFTA and EEA Member States, and Denmark, except Liechtenstein. \- The Council Regulation (EU) No 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of judgments in civil and commercial matters, which replaced the abovementioned Brussels Convention, and which was addressed to all EU Member States, except Denmark which opted‐out. The main purpose of these instruments according to the preamble of the Regulation is to "determine the international jurisdiction of their courts, to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements." The Regulation shall not apply to bankruptcy or proceedings relating to the winding‐up of insolvent companies, social security matters and arbitration proceedings. It establishes different rules of private international Law to determine the jurisdiction of EU Member States courts, mainly consisting of exclusive forums, optional or alternative forums and a general forum. 1. Exclusive forums: for rights in rem and immovable property; constitution, nullity or dissolution of companies; application or validity of patents and trade marks; registries, in general according to the general principle "forum sitae". Or in cases of enforcement or recognition of judgments where they are intended to be enforced or recognized, "Prorrogatio fori", selection forum clause or choice of court agreements or designated forum agreed by the defendant. 2. General forum: EU Member State in which the defendant is domiciled, regardless of his/her/its nationality, according the general principle of private international Law "actor sequitur forum rei". 3. Optional forums: On matters relating to a contract, the place of performance of contractual obligations. In non‐contractual matters, liability for negligence or tort, accidents, wrongful acts or omissions causing death, harm or damages, material or non‐material, the place where the event or wrongful act or omission occurred. On matters related with contracts of insurance or damages insured, the insured's domicile. And in cases of consumer protection, the consumer's domicile. ### Rome I consists of the following instruments: \- The Rome Convention on the Law Applicable to Contractual Obligations of 1980, bringing together 26 EU Member States and the EFTA and EEA Member States, and Denmark. ‐ Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations which replaced the abovementioned Rome Convention, and which was addressed to all EU Member States, except Denmark which opted‐out. Those instruments determine the Law applicable on interpretation, termination and breach of contracts, assessment of damages, and consequences of a contract being legally void or voidable. But they permit to the parties to a contract to choose the governing Law, whenever the foreign element test and the minimum contact principle are respected. This Law may be applied to only a part or the whole of the contract, and can be changed at any time as long as all parties agree. Where the parties have not chosen the Law applicable, the general rule is the Law of the State of residence of the seller, service provider, carrier or franchisee applies (i.e., similar to the general rule of debtor's or defendant's domicile) ### Rome II consists of the sole following instrument: ‐ Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the Law Applicable to Non‐Contractual Obligations, which was addressed to all EU Member States, except Denmark which opted‐out. This Regulation determines the Law applicable to liability for wrongful acts or omissions where negligence or tort intervene giving rise to material or non‐material damages in road traffic accidents, aircraft accidents, product liability, industrial action or environmental damages. It also includes those acts of unfair competition and acts restricting free competition, or infringements of intellectual property rights which are not falling under the scope of contractual obligations (i.e., in case of not being part of a contractual obligation) The general rule is that the Law applicable will be that of the State where the damage occurs, irrespective of the State in which the event, wrongful act or omission giving rise to the damage occurred and irrespective of the State or States in which the indirect consequences of that event, wrongful act or omission occur. It provides also an exception rule if the case is more closely connected with the Law of another State. In that case the Law of that State does apply.