EU Private International Law Introduction to PIL 2024 PDF

EU Private International Law cod. 50169 1. Introduction to Private International Law Paola Mariani [email protected] Studying materials: Textbook: G. van Calster, European Private International Law, 2nd ed., Hart Publishing, last edition To go more in-depth: G. Cuniberti, Co...

EU Private International Law cod. 50169 1. Introduction to Private International Law Paola Mariani [email protected] Studying materials: Textbook: G. van Calster, European Private International Law, 2nd ed., Hart Publishing, last edition To go more in-depth: G. Cuniberti, Conflict of Laws: a Comparative Approach, Edward Elgar, last edition (available at the library) Cases & readings uploaded on Blackboard Slides uploaded on Blackboard 3 Teaching methods In addition to frontal lectures, there will be four practical sessions during the course. Practical sessions consist of the solution of a case based on the subjects covered in the previous lectures. Students can work individually or in a couple. It's an open-book exercise. Attending and non- attending students can take the practical sessions. Practical sessions ensure a hands-on approach to the topics, an exchange with colleagues during teamwork, and training on the practical application of concepts analysed during the lectures. 4  Evaluation The primary assessment method for both attending and non-attending students is the general exam. This exam will contain two case-based questions to be answered on Respondus within 90 minutes. These questions are designed to test the students' application of the principles learned in class to real-life situations. Students have the option to split the general exam into a mid-term and an end-of-term exam. The mid-term exam will focus on topics covered in the first half of the semester and will consist of one case-based question to be answered on Respondus within 45 minutes. The end-of-term exam will cover topics from the second half of the semester and also consists of one case-based question. Students who are not satisfied with their grades on the mid-term exam can choose to take the general exam instead. Attending practical sessions gives students the opportunity to include the assignments submitted during these sessions in calculating their final grades. The final grade calculation will consider the average of the grades of three out of four assignments submitted, which will account for 50% of the final grade of the course, only if it increases the final result. According to University regulations, the second end-of-term exam can be attempted during the first and second exam sessions. Exchange students can attempt the second end-of-term exam in the December session too. In the exams, the two case-based questions are evaluated on a thirty-point scale, with eighteen being the passing grade. Similarly, practical sessions are also assessed on a thirty-point scale. Today: ①What is PIL about? ②Cross-border situations in a plural world ③The international dimension of PIL 6  POLL Which legal system are you studying? Have you studied PIL and EU law in previous courses? Are you familiar with international business transactions or arbitration? 1. What is PIL about? Two titles for the same legal subject: Private international law (more commonly used in European civil law countries) Conflict of laws (predominant in common law countries) 8 In broad lines PIL regulates the reaction that a legal system will have towards elements (persons, facts, law, judgments) coming from other legal systems Its object and purpose is to deal with alterity See R. Quadri 9 Important: PIL implementation differs from other branches of private law PIL does not provide answers to settle the merits of a dispute It is rather a set of methods aiming at determining under which rules (and by which tribunal) shall parties reach a solution to their dispute 10 A legal system can react in different ways when facing foreign elements By ignoring alterity and treating national and international cases the same way (i.e. applying national law) 11 A legal system can react in different ways when facing foreign elements By creating specific rules that apply to cross- border situations (i.e. Vienna Convention on the International Sale of Goods) 12 A legal system can react in different ways when facing foreign elements By determining the conditions under which foreign elements will integrate the legal system this is PIL! 13 Concretely, how do PIL issues arise? Parties can be in conflict regarding the tribunal that should settle a dispute or the rules that should govern the matter 14 Concretely, how do PIL issues arise? States can impose conditions on the jurisdiction of their courts as well as the application of foreign law (imposing in some cases the application of national law for reasons of systemic order or public policy) 15 The importance of knowing PIL solutions It is only possible to achieve predictability and legal certainty in cross-border situations if we can anticipate which courts and which law will govern any dispute that might arise Parties can be exposed to discontinuous status and obligations because of the different legal solutions provided by different legal systems 16 2. Cross-border situations in a plural world 17 Cross-border situations in a plural world: Intra-family Marriages Claudius and Agrippina  Cross-border Marriages According to the uncle’s personal law (Italian Law), intra-family marriage is legal According to the nephew’s one (Chinese Law), their marriage would be incestuous and hence prohibited 19  Cross-border Marriages In this case, we see two possible (and equally legitimate) outcomes Two laws are potentially entitled to determine whether or not the marriage is possible We can see a conflict among these laws This conflict will be settled by the authority taking the decision, based on the PIL rules of its own legal system (lex fori) 20  International Contracts A German company concludes a long-term contract to sell goods to a French company The production of these goods is affected by a meteorological phenomenon that decreases productivity and increases its price in the international market Once the contract ceases to present any benefit for the German company, this latter proposes its renegotiation or, alternatively, its termination The French company refuses 21  International Contracts German law admits the possibility of revision of a contract for hardship, while this legal remedy is not admitted under French law Each company invokes the law better fitting their expectations How will the dispute be settled? How would you advance the cause of both companies? 22 Plurality & legal strategies Discrepancies in the possible outcomes shall be integrated in the planning of any cross-border relationship Different outcomes often mean that one might be more beneficial for one party than the other, so it should be seriously considered 23 Uniformity, predictability and the risk of forum shopping Uniform PIL rules could ensure a predictable legal framework for legal transactions the applicable law would be the same independently from the deciding authority uniform rules could also provide solutions regarding the jurisdiction of courts 24 In practice? Particularism of national decisions Also, whenever there are treaties providing uniform PIL Also, when applying uniform substantive law This fragmentation encourages forum shopping (the process of shopping around the world’s legal systems until finding one where a successful outcome is most likely) Advantage for the claimant (able to choose first) 25 In the absence of harmonization: There is room for forum shopping 26 3. The international dimension of PIL Since every legal system will at some point have to face elements coming from abroad (and determine how to react towards them), PIL constitutes a branch of law as essential as criminal law or civil law The decision of ignoring alterity and trading all the situations in the same way is in itself a PIL solution It is up to each State to decide autonomously how to develop these principles What is international in PIL is the nature of the issues dealt by the discipline, not its origin or its sources (differently from its public counterpart) 27 Influence of international sources over PIL solutions In spite of this national nature, States obligations under Public International Law also help shaping PIL solutions: – Treaties harmonizing PIL; – States obligations in matters related to the protection of fundamental rights; – Regional integration. 28 Private vs. Public International Law Public international law governs the relations between sovereign States and International Organisations Private international law concerns disputes of a private nature, legal relations between private parties connected with more than one country – This distinction can be difficult in some cases (i.e. investment law) It also means that PIL solutions can hardly be imposed universally because of their local, private nature 29 International elements within the resolution of PIL issues: what is a foreign country? For the purpose of PIL, a country is any territorial unit having its separate system of law, whether or not it constitutes an independent state politically (the idea of legal system) Each of the states of the US is a separate country as well as in the UK (England, Scotland and Northern Ireland) 30 Federal States: PIL in the US In the United States, private law is not harmonised at the federal level It is part of State law – Restatements: provide models that can or cannot be followed by federal States Two possible conflicts of laws: – Interstate conflicts (conflicts between US States law) – International conflicts (conflicts between the law of a US state and foreign law) 31 Next classes: The three processes of PIL: Jurisdiction Recognition of Choice of law foreign decisions 32