122PAGESOFPILPASTEXAMS

PIL theory questions
2012 resit
Case
X, domiciled in State A, agrees with Y, domiciled in State B, upon the purchase of a painting
of the famous artist Z. Z is the most well-known artists ever of State B. The parties choose
their agreement to be subjected to the law of State A (choice of law). In order to protect its
cultural heritage, the legislation of State B prohibits the export of paintings of artist Z. As a
result Y cannot deliver the painting to X. X therefore sues Y in a court of State B.
a) How would you qualify the rule of State B that prohibits the export of paintings
of artist Z (or: What kind of PIL-rule does this rule reflect?)? (½ pt)
Answer:
Special mandatory rules/super mandatory rules/overriding mandatory rules (SMR)
b) Should this rule be taken into account by the court of State B (even if the conflict
rules of State B allow parties to make a choice of law)? (1½ pts)
Answer:
Yes, SMR have to be taken into account, irrespective the (otherwise) applicable law, definitely
the SMR of the forum, i.e. the SMR of the legal system of the court in which the defendant has
been sued (Court of State B), cf. article 9 Rome I Regulation. Parties may have chosen for the
law of State A as the applicable law, SMR of State B nevertheless must be taken into account.
c) Suppose the answer to the previous question (question b) should be affirmative,

would this approach be in accordance with:
i. The theory of Von Savigny?
ii. The theory of the neostatutists (or: policy evaluation method)?
Please motivate your answers. (2 pts)
Answer:
i. No, the acceptance of SMR’s is not in accordance with the theory of Von Savigny.
Starting point to find the applicable law for Von Savigny is the international relationship.
The aim is to find the most closely connected law (the seat where the relationship
belongs). Therefore he developed the multilateral conflict rules and the use of connecting
factors that are neutral, blind and abstract. The contents of the law to be applied, is not
relevant. Whereas the theory of the SMR starts with the contents and importance of the
rules.
ii. Yes, the neostatutists use the substantive rules and the contents of the rules as starting
point in determining the applicable law. The contents, meaning, the protection of
(governmental) interests aimed at etc, are decisive. SMR function in a comparable way
(cf. the description of SMR’s in art. 9 par. 1 Rome I Regulation).
d) The application of which of the following ‘principles’ could in the case described
above lead to the application of the law of State A?
i actor sequitur forum rei
ii exceptio litis pendentis
iii forum actoris
iv lex loci solutionis
Please motivate your answers. Furthermore, don’t forget to explain the meaning
of all four Latin expressions mentioned above. (2 pts)
Answer:
i. Actor sequitur forum rei: the plaintiff follows the court of the defendant; the defendant is
sued in the court of the place where he (the defendant) is domiciled, (the so called natural
forum). This principle concerns the competent court, and doesn’t say anything about the
applicable law.
ii. Exceptio litis pendentis: the exception to the rules of international competence on the
ground that the same dispute between the same parties is pending before another court.
This principle does not refer to any applicable law.
iii. Forum actoris: the court of the plaintiff; competence of the court on the base of the
domicile of the plaintiff. This principle concerns the competent court, and doesn’t say
anything about the applicable law.
iv. Lex loci solutionis: the law of the place of performance of the relevant obligation. If the
contract had to be performed in State A, this principle indeed would lead to the
application of State A.
CONTINUATION OF QUESTION 2
a) Explain how the dependent approach of the preliminary or incidental question

functions. Illustrate your explanation by an example. This may be a fictitious
one. (2 pts)
Answer:
The preliminary or incidental question concerns a question that arises when a main question is
dealt with, and which has to be answered before the main question can be answered. Example:
one can only divorce (main question) if one is validly married (preliminary or incidental
question). Following the dependent approach means that the preliminary question is answered
according to the same law that (according to the PIL of the forum) has to be applied on the main
question. Example: if the court of State A has to deal with a divorce (main question), and if the
divorce, according to the PIL-rules of State A is governed by the law of State B, the validity of
the marriage (preliminary question) also has to be answered according to the law of State B (and
not according to the PIL-rules of State A, which would be the independent approach).
b) What has been the influence of the ideas of Bartolus de Saxoferrato on the
development of private international law? (2 pts)
Answer:
Bartolus de Saxoferrato was an Italian statutist who questioned the scope of the applicability of
the own law (statutes): extraterritorial application and applicability on foreigners. His approach
was a unilateral one in which he divided statutes to their subject (personalia and realia) and
determined the scope according to the words that where used by the legislator.
Essay Question
c) Please create one PIL example where the place of action (Handlungsort, or place
of occurrence of the event given rise to the tort) and the place of success
(Erfolgsort, or place where the harmful event results in damage) coincide and one
example where both places fall apart. (1 pt)
Answer:
a) Coincide:
Boris Becker from Germany crashed into the car of Ivan Lendl in Spain. Ivan Lendl is hurt
and cannot move his leg anymore. Furthermore, the car is almost destroyed.
b) Fall apart:
Helmut Cool stands at the German-French border on German territory and fires with his
pistol on a potential thief of his car on the French side of the border. Accidentally he hits
Ivan Inozent who was standing at the French side of the border.
Feb 2019
QUESTION 2
Section A (9 points)
Proposition:
‘The EU involvement in Private International Law has eliminated the use of nationality as a
connecting factor in PIL in the European Union’
Explain whether you agree or disagree with this proposition. Please include references to
relevant legal instruments and to other connecting factors that may have replaced the use
of nationality.
[9 points] Schematic answer

• PIL is the area of law that comes into play whenever a court is faced with a question
involving private parties that contains a foreign element, or a foreign connection. The mere
presence of such a foreign element in a legal matter raises a number of questions and it is
the function of private international law to provide an answer to these questions and to
ensure just solutions.
• In past decades, EU PIL has considerably expanded
• None of the EU instruments in the Reader use nationality as the primary factor for
jurisdiction or applicable law purposes. Here examples could be added – reference to other
more salient connecting factors (domicile, habitual residence, etc )
• However, one cannot speak about elimination of this connecting factor – Here examples to
be added (including nationality of one MS as the prerequisite for European citizenship, case
law on nationality, etc.).
• Students should then agree or disagree with the statement. Partial disagreement appears
to be the best position in light of the sources under review.
• Credit will be given to a thought out argumentation and a conclusion.
Section B (3 points)
As you have noticed over the past weeks, Latin expressions are commonly used in Private
International Law.
Question: Explain the meaning of the following Latin terms:
i) Lex causae
(1,5 points) The term ‘lex causae’ (Latin for the law that governs the cause of action, the
merits of the case) is generally used to refer to the law that provides the substantive legal
rules applicable to the case. TBD + example or illustration
ii) Forum necessitatis
(1,5 points) The term ‘forum necessitatis’ (Latin for a jurisdiction rule that applies as a last resort,
in case of need) generally refers to an exceptional jurisdiction ground that grants international
jurisdiction to the court where the dispute is filed where no other jurisdiction rule is applicable. It
expands the jurisdictional reach of that court and leaves discretion to that court to appreciate
whether there is such a need or not. TBD and example/illustration
2011
Continuation of case
Francisco is very much hurt in his pride because of Anna’s message. Although he always
believed that only death could part them, he too decides to take steps. On 12 January 2010
he initiates divorce proceedings before the Italian court of Rome.
a) Shall the Italian court accept jurisdiction? Explain why/why not. (3 pts)
The Italian court shall (probably) not accept jurisdiction, as Anna has already applied
for divorce at a German court on 1 January 2011 when Francisco initiates
proceedings before the Italian court on 12 January 2011. This is a situation of Lis
Pendens (the situation in which the same proceedings between the same parties are
brought before courts of different member states), see art. 19 Brussels II bis Reg. In
this situation the second court seized, the Italian court, shall of its own motion stay
its proceedings until such time as the jurisdiction of the court first seised, the
German court, is established (art. 19 section 1 Br. II bis Reg.). Where the jurisdiction
of the first court seized, the German court, is established, the court second seised,
the Italian court shall decline jurisdiction in favour of that court (art. 19 section 3 Br.
II bis Reg.). (So, only when the first court seized, the German court, will not establish
its jurisdiction, the court second seized, the Italian court, may accept jurisdiction.)
b) Would a divorce order of the court which eventually had jurisdiction, be

recognized throughout the EU? (2 pts)
The divorce order shall in principle be recognized in the other member states of the
EU (except for Denmark, see art. 2 Br. IIbis regulation) without any special procedure
being required (art. 21 section 1 Br. II bis Reg.), but it shall e.g. not be recognized if
the recognition of the divorce order is manifestly contrary to the public policy of the
MS in which recognition is sought (art. 22 sub a Brussels IIbis Reg.). In the case at
hand there is no manifest violation of the public policy.
Question:
d) Explain as to whether or not the following proposition is correct:
‘An agreement on the jurisdiction according to art. 23 I Brussels I always prevails!’
(2 pts)
The statement is not correct.
An agreement on jurisdiction, according to Art. 23, does not always prevail. This follows from
Art. 22, which stipulates some exclusive jurisdictions. These jurisdictions are mandatory and
displace jurisdictions according e.g. to Art. 2, 5 and 6. But also prorogation and derogation,
according to Art. 23 and Art. 24, do not found a jurisdiction deviating from Art. 22.
QUESTION 3 (10 points)
a) Explain the concept of the so called „renvoi“ (including the „renvoi au premier
degree“ and the „renvoi au second degree“ or in English „remission“ and
„transmission“) (2 pts)
The situation can appear that the lex causa does not accept the reference made by the
conflict rule of the forum (the lex causae may refer back or further, see below), if the foreign
conflict rule contains a different connecting factor than the conflict rule of the forum. This
can only happen if the conflict rule of the forum refers to the law of another state including
its Private International Law (conflict rules). If not, it is a reference to the substantive law of
the other state and thus there is no possibility for a renvoi. If the conflict rule of the lex
causae refers back to the law of the forum it is called renvoi au premier degree/remission
(for example as in the “Forgo” case) and if it refers (further) to a third countries law, renvoi
au second degree/transmission.
b) Explain whether or not the following proposition is correct: ‘Renvoi leads always
to international harmony of decisions’. (2 pts)
The renvoi does not always lead to international harmony on decisions. It depends.
It leads to international harmony of decisions in the sense that foreign law is not applied
against its own “will”, in other words when referring directly to the substantive law, it could
happen that this application is against its conflict rules and imposes the application of the
own law. It leads to international harmony of decisions especially in the case of renvoi au
second degré and if the reference is accepted by this country.
It does not lead to international harmony, when the reference especially in case of renvoi is
suspended, in cases of renvoi au premiere degree.
c) Name 2 PIL techniques or methods that contribute to the goal of international

harmony of decisions. (2 pts)
Two examples are:
- unification of conflict rules, as e.g. in Rome I and II
- unification of substantive law, as e.g. CISG
d) Explain:
a. in which kind of situations the „ordre public“ (public policy) principle has to
be applied;
b. how is the ordre public principle defined;
c. what is meant with the „relative” character of the „ordre public“ principle.
(3 pts)
a) The ordre public principle has to be applied in cases, when the application of foreign law
(or the result after the application of foreign law (e.g. in the case of recognition) leads to
results which are incompatible with fundamental principles and norms (rights) of the
national legal system (forum state). In these circumstances the foreign law is not applied
(or: the result will e.g. not be recognized).
b) The ordre public principle can be defined as the entirety of fundamental principles and
norms of a national legal system. These can e.g. be found as civil rights in the constitutions
of the countries. But also in international conventions or treaties, e.g. in the ECHR, as far as
these instruments are part of the national law. Furthermore in the protected goods and
rights in the criminal codes.
c) The relative character of the ordre public means that this principle needs a significant
connection between the case and the domestic law in order to be applied or invoked; this
may vary from case to case. But also that the rights protected by the ordre public, e.g. civil
rights are not absolute and are subject to changes in time and/or place.
e) What is a “conflit mobile”? (1 pt)

Basically a conflict mobile is the change of the circumstances, e.g. change of nationality or
change of domicile or change of habitual residence, so that the outcome of a conflict rules is
a different one than before the change. Therefore the connecting factor remains the same,
but the underlying facts are changed. For example “lex rei sitae” is the connecting factor of
the conflict rules and a good is moved to another country. Here the facts and the outcome
change, but the rules stay the same.
A reason for a conflict mobile in a broader sense is that a conflict rule as such is revised, e.g.
reform of a Private International Law code. Another reason is a so called
“Zuständigkeitswechsel” of a court, which means the change of the competence of a court.
a) Explain the method of the Statutists to determine the applicable law (2 pts.):
They made use of the so-called unilateral conflict rules. The starting point of their method is
the legal rule itself: the function, characteristics/nature and contents of the rule determine
(the scope of) its international applicability. It is therefore a direct and non-abstract method.
The statutists made a distinction in statuta realia (immovables), statuta personalia
(restricted category of personal law), statuta mixta (restgroup) governed by principle of
territory.
The statute realia and mixta were governed by the principle of territory; the statuta
personalia by the principle of domicile.
b) Theoretical basis for the application of foreign law according to the Dutch
Statutists? (1 pt)
Statutists: comitas (‘courtesy’): the states had to mutually tolerate and accept each others
laws within their borders ex comitate;
c) Explain as to whether or not the following proposition is correct:

‘the choice of law based on party autonomy is not an alien element to the classical
method of choice of law by Von Savigny’. (3 pts)
The choice of law by the parties represents the so-called subjective connecting factor: the
parties themselves make a choice for the applicable law to the international case. The
method of V. Savigny implies that the international legal relationship/case has to be brought
there where it belongs, i.e. to its Seat/Sitz = the closest related legal system (law) by means
of the connecting factor (proximity theory). The connecting factor is the link between the
international legal relationship and the closest related legal system and thus refers the int.
legal relationship to the closest related national legal system. Therefore the question for the
appropriate connection factor is important: which aspect of the international legal
relationship refers to the legal system that is the closest related to the int. legal
relationship? In principle this can only be the objective connecting factor as the subjective
connecting factor of choice of law by the parties may not necessarily lead to the closest
related legal system which is a requirement of the Savignian method of choice of law. In
that respect the choice of law by the parties is an alien element to the system of v. Savigny
and thus the proposition is incorrect.
There is, however, a justifying reasoning possible: the choice of law by the parties may be a
solution, as ultimum remedium, if the reference to the most closely related legal system is
not possible by the ‘normal’ objective connecting factor. In order to be somehow in
accordance with the Savignian system, the chosen law can then only be a law which is
involved in the case. The thus restricted choice of law as ultimum remedium is then not an
alien element to the Savignian system.
d) What is meant by special mandatory rules (2 pts)?

Special mandatory rules are substantive rules of a semi-public legal character which - when
they fit into the scope of the case - have to be applied irrespective of the otherwise
applicable law in order to protect the public interests (economical, political and social
organisation) of their state of origin. See also definition in art. 9(1) Rome I reg.
If not one of the elements as mentioned above, has been mentioned, e.g. the following
answers have been accepted and graded as well:
These SMR can be either domestic or of a third state. The international applicability of SMR
is determined by the function, nature and contents of the rule itself in combination with the
state’s/public’s interest in it’s applicablity and therefore the SMR contain an unwritten
scope-rule (1 pt). Neo-statutists’ method.
Explain the following Latin terms:

e) Forum non conveniens (1 pt): development in common law countries → court that would
have jurisdiction according to international competence rules is free under the particular
circumstances of a case to decide to decline jurisdiction, or at least to order a stay if foreign
court appear to be the more appropriate court.
f) Favor divortii (1 pt):

Literally: favouring the divorce, in other words: to facilitate that a person obtains a divorce
or at least that the law (PIL rules) does not hinder (one of) the spouses obtaining a divorce,
or to uphold the validity of the divorce. See e.g. art. 1 WCE (Dutch PIL Act relating to
divorce) or the arts. 14 jo 17 EGBGB: the use of the subsidiary or stairs of connecting factors
refers to and furthers the favor divortii by providing for several possibilities of applicable
laws to divorce and especially by providing for the applicability of the Dutch or German law
to divorce in the case that the marriage cannot be dissolved in accordance with the other
possibilities. Favor divortii can also be used in relation to (a policy for) recognition and
enforcement of foreign divorce decrees.
Feb 2018
1. QUESTION 2 (10 points)
a) ExplainthefollowingPILnotions.Pleasegiveanexampleofwhatthesenotions mean
and/or provide an example from EU PIL instruments studied throughout the
course:
i) forum prorogatum (1 pt)

Prorogated jurisdiction – jurisdiction chosen by consent by the parties. Eg. Art. 25 Brussels
I
Recast
Proceedings on the same facts by the same parties cannot be commenced in a second
court if the lis i.e. action, is already pendens, i.e. pending, in another court. Lis pendens
arises from international comity and it permits a court to refuse to exercise jurisdiction
when there is parallel litigation pending in another jurisdiction. E.g. Art 19 Brussels II Bis
iii) renvoi (2pts)
Where a matter before a court has an international element, the court will initially apply
the PIL rules of the jurisdiction in which it is located (A) to decide which law applies. If A's
law is the applicable law, the court will apply A's domestic law. However, if the applicable
law is that of another jurisdiction (B), the court must decide whether to apply B's domestic
law or B's law including B's own PIL rules. If the court decides on the latter and B's PIL
rules refer back to the law of A, or refer to the law of a third jurisdiction, this referral is
known as renvoi ("sending back" in French). E.g. Art. 12, exclusion of renvoi, 2007 Hague
Protocol on law applicable to maintenance
b) Proposition(3points):
“The use of uniform conflict rules guarantees the international harmony of

decisions.”
Explain whether and why this proposition is correct or incorrect. Do not forget to
explain the terms that are underlined in the proposition, in your answer.
• Explain proposition:
o It was Von Savigny’s ideal to achieve an international harmony of decisions by means of
his theory of proximity through multilateral conflict rules. The starting point in his theory
of proximity is the legal relationship itself that has to be ‘brought home’, to its seat (sitz).
The sitz is the legislative jurisdiction, and thus its legal system, to which the legal
relationship belongs according to its particular nature. It is the conflict rule by means of
the connecting factor that attributes the legal relationship involved to that legal system
being the closest related legal system.
o If all states apply this theory of proximity, an international harmony of decisions should be
achieved in the idealistic view of Von Savigny. A harmony of decisions is the situation that
irrespective of which court has international jurisdiction, the same law will be applied in a case
thus resulting in the same decision in the end.
o But each state makes its own multilateral conflict rules while maybe choosing different
connecting factors implying that states may apply different multilateral conflict rules and
connecting factors in similar cases resulting in different applicable laws and thus in different
substantive outcomes. However, when states use multilateral conflict rules that have been unified,
uniform conflict rules, their courts will all apply the same law in a case resulting in the same
substantive outcome in the end and thus may achieve an international harmony of decisions.
o However, despite the use of such uniform conflict rules, an international harmony of decisions
can still be hampered because of the possibility of states to invoke the public policy exception, to
apply their overriding mandatory rules, and because of the differences in renvoi-policy among
states etc.
o Conclusion: Hence, the proposition is partly correct (or incorrect): the use of uniform conflict
rules results in international harmony of decisions as long as aspects such as the public policy
exception, overriding mandatory provisions, the differences in renvoi-policy among states do not
interfere.
c) Explain the problem of conflict mobile (or conflit mobile) in respect of movable goods
and goods in transit and include the solutions thereto. (3 points)
• Conflit mobile refers to the situation where there is a change in the circumstances
underlying a variable connecting factor (e.g. lex rei sitae, nationality, and domicile). This
has the consequences that two or more legal systems are competing to govern the legal
relationship.
• The commonly applied solution to movable goods is that of the latest crystallizations of the
connecting factor i.e the lex rei sitae. Thus the law of the place where acquisition or loss in
rights in rem occurred continues to govern the good even if the good is moved to another
country. Where a new crystallization occurs in the other country, then that law applies
from then on.
• In case of goods in transit the issue of conflit mobile can be solved by applying a more
specific connecting factor. This can then be the lex loci destionis (the law of the place of
destination) or the lex expeditionis (the law of the place of dispatch).

a) Case:MariaandIan(4points)
Maria and Ian married ten years ago. Their marriage was validly celebrated in accordance
with the law of EU-member State X where the marriage took place. Last month, their
marriage was dissolved by divorce. Now Ian claims for maintenance in a national court of
another EU-Member state (State Y) where they lived together. It was Ian who gave up his
job to take care of the household and their adoptive children during and following the
relationship.
Argue from a PIL perspective whether and why recognition of the validity of the previous
marriage between Ian and Maria in State Y can be a prerequisite in order to possibly claim
for maintenance. (2 pts)
Answer: validity of marriage can come up as preliminary question to main question about
spousal maintenance. Maintenance obligations can inter alia arise from a marriage.
Therefore, a valid marriage between Maria and Ian is a prerequisite in order to enable Ian
claim maintenance from Maria arising from their marriage.
Describe the two possible PIL approaches of the court of State Y with regard to the issue
of the validity of the marriage in respect of a maintenance claim (2 pts)
• Incidental question regarding the validity of the marriage will be answered

o either to the PIL-rules of the forum, lex fori (independent approach; furthers internal
harmony of decisions as judges within one state will take similar decisions regarding a
specific issue irrespective of the context), or
o the lex causae of the main question (being the divorce) (dependent approach; furthers
international harmony of decisions because the result will be the same irrespective of the
court)
2018 resit
QUESTION 1 MOHAMMED AND ANA (10 POINTS)
Mohammed (who has Moroccan and Dutch nationality) lives in Fez (Morocco). He is happily married
to his wife Nadia (who has Moroccan nationality). However, since it is allowed according to
Moroccan law to marry up to four women, Mohammed decides to marry two other women: Halina
(who has Moroccan nationality) and Ana (who has Dutch and Belgian nationality). Ana convinces
Mohammed and the other two women to move to the Netherlands with her. She assures him that
their polygamous marriage will be recognised in The Netherlands.
Ana is a friend of your family and tells you about her plans. You are a hardworking student at
Maastricht University who just finished a course in Private International Law. During the course you
were told that public policy could lead to trouble in polygamous paradise.
a. Explain the meaning of public policy and its two dimensions. (3 points)
• Explanation PIL public policy/ordre public: 1. is used to limit the influence of foreign law on the
core and kernel of fundamental values and norms of a legal order; 2. can justify restrictions of
fundamental freedoms. Public policy exception
- Degree of involvement and connection with the legal order of the forum (Inlandsbeziehung)
- Different approaches between States
- changeable in time
• Credit would also be given if students considered international public policy:

International/PIL public policy/ordre public on a European level: limits the applicability of
national concepts of public policy/ordre public in the interest of a uniform judicial area; in
such an area there should be unrestricted recognition.
• Negative dimension public policy
o Violation of fundamental principles of the lex fori o “Invoked in case of:
▪ unacceptable applicable foreign law

▪ recognition of unacceptable foreign decisions
• Positive dimension public policy

o Principles so important that they have to be applied, irrespective the otherwise applicable law →
special mandatory rules
QUESTION 2 PRIVATE INTERNATIONAL LAW NOTIONS (10 points)
c)
a)
Explainfollowingprivateinternationallawnotions:
1. i) actor sequitur forum rei (1 point)
the plaintiff follows the court of the defendant (proceedings in the court of the defendant)
2. ii) forum non conveniens (1 point)
court that would have jurisdiction according to general rules is free under the particular
circumstances of a case to decide to decline jurisdiction, or at least to order a stay if
foreign court appears to be the more appropriate court
3. iii) dépeçage (1 point)
parties can subject different parts of their contract to different legal systems: they can
achieve such splitting by choosing different legal systems for different parts of the contract
or by limiting their choice of applicable law to a part only of the contract
Explainthethreedifferentpossibleapproachestowardsclassification/ characterization of a
legal issue for the purposes of identifying the scope of a particular conflict rule. (3
points)
- lex fori approach (independent approach): classification/characterisation of the concrete

international case according to the system of notions of the legal (conflict) rules of the forum
- lex causae approach (dependent approach): classification/characterisation of the concrete
international case according to the system of notions of the lex causae, the law that is applicable
to the case according to the conflict rule
- autonomous/legal comparative approach: classification/characterization of the concrete
international case on the basis of legal comparative research
Inheritance Claim (4 points)
b)
Max Pile, a national of country A, has lived most of his life in country B. Upon his death his wife
initiates proceedings before the national court of country B seeking to inherit Max Pile’s assets
which at the time of his death are in country B.
The private international law of succession of country A states:

1. Where the goods of the deceased are located in another country, the law of that country shall
apply to the succession
2. Renvoi is excluded
The private international law of succession of country B states:

1. The law that applies to the succession shall be the law of the country whose nationality the
deceased held at the time of his/her death.
2. Renvoi is accepted
Question: Which law will the court of country B apply to the inheritance claim? (4 points)
• - The court of country B will determine that the law of country A is applicable - the law of
the nationality of the deceased.
• - Since country B accepts renvoi it will make a total reference to the law of country A,
comprising the PIL of country A.
• - The PIL law of country A, however, refers back to the law of country B being the law of
the country where the goods are situated as the applicable law.
• - However, because country A excludes renvoi it means that the law of country A refers
only to the substantive law of country B as the applicable law, excluding the PIL of country
B.
• - Hence the court will apply the substantive law of country B.
April 2022
Discussion question
“Child abduction cases in the EU require the joint application of the Regulation Brussels II
and the 1980 Child Abduction Convention. It would be better to have one single legal
instrument to deal with such intra-EU cases.”
Schematic answer
• - Refer to the specifics of the area under review: special needs of abducted children,
swift return, child’s best interests, etc ...
• - Refer to the specifics of one instrument: EU Regulation, direct effect and applicable
in all MS, mutual trust as the cornerstone of the civil justice area, binding
interpretation by CJEU, ability of EU MS to make more detailed arrangements than in
an international treaty of worldwide application. It is possible to illustrate this by
reference to cases or examples used in lectures.
• - Refer to the specifics of the other instrument: concluded in 1980, is it fit for
today’s cases of international child abduction? Wide scope of application, more than
100 CS and decades of international cooperation based on that Convention. Judicial
cooperation based on Hague Judicial Network, etc. It is possible to illustrate these
features by reference to examples, statistics, etc. used in lectures or tutorials.
Consider the advantages and disadvantages of joint application: the EU Regulation

refers to the Convention as the main legal instrument and builds upon the
Convention’s provisions. According to Article 11 Brussels II, the application of the
Convention in intra-EU cases is subject to paras. 2 to 8 of this Article.
• - The EU lawmaker thus foresees joint application. From a policy perspective, the
choice is for an integrated application of an international treaty and an EU
Regulation. No need to have two distinct legal schemes, one for intra-EU cases and
one for extra-EU cases.
• - However, it requires a good understanding by EU judges of the interaction

between the two sources of different origin and different features. Illustrate with
CJEU caselaw possible here: standard reference to both instruments.
• - Besides these basic points, grades will take into account the inclusion of a
motivated opinion and the essay’s structure and formulation.
January 2022
ESSAY QUESTION
In a short essay of maximum 600 words, can you explain why “habitual residence” is a more
adequate connecting factor than “nationality” in EU PIL regulations relating to international
family disputes?
Schematic answer
- Discuss the area under review: the EU PIL regulations relating to international family disputes include
Brussels II, Rome III, and the Maintenance Regulation (2 points)
- Illustrate that habitual residence is a more frequent and relevant connecting factor or head of jurisdiction
both for determining the applicable law and the competent court in cases falling under those EU Regulations
by referring to specific articles in those Regulations (see for example articles 3 and 6 of Brussels ii bis, or
articles 10, 11 and 12 of Rome ii) (1 point)
- Explain the notion of habitual residence” – factual interpretation, autonomous meaning according to
caselaw of the CJEU, also an evolving concept and adaptable to the circumstances of the case (e.g. a child’s
young age, the specific subject matter of the dispute, etc.). Illustrate this by reference to cases or
examples used in lectures or tutorials. (3 points)
- Explain the notion of “nationality” – has the advantage of being a stable connecting factor, but on the other
hand it is determined by domestic law, which may give rise to problems as EU nationals from different
Member States may be subject to very different substantive rules. Problems can also rise with regard to
binationals, stateless people, etc. Stronger weight is given to a common nationality (e.g., of spouses).
Illustrate these different points by reference to cases or examples used in lectures or tutorials. (3 points)
- Discuss the CJEU caselaw on the use of nationality as a connecting factor and its compatibility with the
fundamental principle of non-discrimination on the grounds of nationality. Use examples. (1 point)
2021 JAN
DISCUSSION QUESTION
In a short essay of maximum 700 words, give your opinion about the following statement:
“The application of overriding mandatory provisions is an illustration of the unilateral method in

private international law.”
Proposed structure and distribution of points
Introductory paragraph where your position as to the statement is anticipated: the statement
is indeed correct, as will be demonstrated in what follows.
After a brief description of what the unilateral method in PIL entails (2 points), this essay
describes OMP (2 points).
Most importantly, assess whether the statement is correct and why. Use available sources:
references to the text on Foundations of PIL by G. Rühl, or to other relevant sources, are
welcome (3 points).
Concluding sentence: repeat position.
Structure and coherence of arguments (no contradictory arguments, no irrelevant arguments,

etc) (3 points)
Schematic model answer
In my opinion, the statement is accurate as overriding mandatory provisions (OMP) operate

in accordance with the unilateral method in PIL.
The unilateral method stems from the Statutists, the Italian scholars of the 12th century:
when having to determine which city-state’s law would apply in a particular case, they
would approach the question by defining the intended spatial reach of the conflicting local
laws. (more elaboration is possible, by referring to Bartolus as one of the prevailing
Statutists; by distinguishing between factors – either personal, territorial or mixed). This
unilateral method is opposed to the prevailing contemporary method, the multilateral
method which is a system that assigns a legal relationship to a legal order with the help of
predefined connecting factors such as nationality or habitual residence. This method was
originally developed by Von Savigny in the XIXth century. Von Savigny’s ideal to achieve an
international harmony of decisions presupposed an equal treatment of foreign and local law
and the search of the applicable law by means of neutral pre-established criteria. This
stands in sharp contrast with the Statutists (and also the neo-Statutists such as Brainerd
Currie in the XXth century) which consider the law, and the law as a representation of
prevailing State interests, as the pivotal factor for the determination of the applicable law.
In contemporary PIL, an overriding mandatory provision is a national rule, which is

considered of such paramount importance that it remains applicable regardless of the
otherwise applicable law by operation of the relevant connecting factor. The overriding
mandatory provisions express a prevailing public interest and, as such, impose their
prevalence despite the international nature of the case. Reference is made here to the
several EU Regulations where the application of OMP is safeguarded (Rome I, Rome II, Rome
III, etc) and the CJEU case law (in particular, da Silva Martins in the context of Rome II,
where the European Court of Justice reminded that an extensive analysis of that provision
is required and it only qualifies as OMP “it is of such importance in the national legal
order that it justifies a departure from the law applicable” pursuant to the conflict
rules). By reference to this case, it is possible to illustrate how exceptional the application of
OMP is (e.g. the limitation periods of the right of recovery are examples of rules that do not
meet the threshold of OMP). On the other hand, a rule that, for instance, ensures equal
treatment among victims despite their racial background may qualify as OMP. Reference to
be made well to the difference between OMP and mandatory provisions, whose
interference with the otherwise applicable law depend on uniform applicability
requirements and a common rationale (for instance, consumer or employee protection).
To assess whether a domestic provision indeed qualifies as OMP, the adjudicator uses
similar criteria than those applicable by the unilateral method described earlier on: one
relies on the wording of a particular substantive rule, on the presumed or apparent
legislative intent, on the rationale of that provision as safeguard of fundamental values of a
given system (can be the forum State, but can be another State; see, for example, Article
9(3) Rome I). Therefore, the unilateral method is illustrated by the way OMP operate: OMP
apply regardless of the international nature of the dispute. They supersede the otherwise
applicable law determined on the basis of multilateral conflict rules on the basis of
unilaterally determined factors by a given law system. It is possible to differentiate here as
well between the exceptional application of OMP in contemporary PIL and a unilateral
approach as a general method.
Concluding paragraph which confirms that OMP are contemporary reminiscences of the
unilateral method as developed by Statutists and revived by neo-Statutists.
APRIL 2021
Essay Question
Statement:
“The relevance of party autonomy for international commercial contracts is noticeable both in the area
of international jurisdiction as in the area of applicable law.”
Model answer
Private autonomy is a general principle of private law. In the context of private international law
(PIL), party autonomy means the right for parties to determine where, and on the grounds of which
law, any disputes arising out of their international commercial contract will be resolved. The
principle of party autonomy in PIL is as such the corollary of the general principle in contract law
according to which the parties stipulate which rules apply to the different contractual issues arising
out of their transaction (the formation of the contract, the rights and obligations of the parties, the
remedies in case of contractual breaches, etc.). (approx. weight 2 points, depending on formulation
and extension).
The statement under review refers to two, out of the three, main areas in PIL: international
jurisdiction, understood as the selection of the forum where an international dispute is resolved and
applicable law, understood as the set of rules to determine which law governs a contract.
If we specifically focus on EU PIL (being the focus of this course), it is important to note that both
international jurisdiction and applicable law are mainly governed by uniform EU instruments, in
particular the Brussels I Regulation and the Rome I Regulation.
[It would be OK, but not explicitly required, to expand here a bit on the main characteristics of these
two Regulations].
Coming to the statement, it is indeed correct to state that party autonomy is a prevailing connecting
factor/jurisdiction basis in the area of international commercial contracts.
With regard to the identification of the relevant court(s) in the event of a dispute on an international
commercial contract, Art. 25 of the Brussels I Regulation confers a very significant role to party
autonomy, by establishing that the dispute will be settled by the court chosen by the parties. A
mention to the Choice of Court Convention would be expected as well (3 points for section on
jurisdiction as a whole).
With regard to the choice of law in international commercial contract, the main source is Art. 3
Rome I Regulation. Reference can also be made to the 2015 Choice of Law Principles, as a source of
soft law. As the statement only concerned commercial contracts, the references to the rules on
consumer contracts, employment contracts, etc. are superfluous. References to the prohibition of
renvoi or the application of overriding mandatory provisions are possible, provided there is a link to
their impact on party autonomy. (3 points for the section on applicable law).
In conclusion, the statement is correct. It is equally correct for choice of law and court insofar as
commercial contracts are concerned, as the jurisdiction rules with higher ranking in the Brussels I
Regulation are of no of very little relevance for international commercial disputes (2 points).
:mModel answer exam Private International Law (I), 03-02-2011
NB: this model answer is meant to provide for an indication of the correct answer. It does not
exclude that other alternatives which are not explicitly mentioned below, can be correct as
well. These will then have been assessed and graded as such.
Question 1 (10 points)
Case
As part of the Erasmus program Anna, a student with the nationality of your country, spent
three months of her law study in Rome. On a beautiful Spring day in 2004 she meets
Francesco, an Italian architect, in the gardens of the Villa Borghese. After three months, in
July 2004, a big Italian wedding is celebrated. They settle in Rome as Francesco runs his own
architect’s firm there. In September 2004 Anna starts her PhD research at the European
University Institute San Domenico di Fiesole near Florence. During the week she stays over
in Florence. This ‘living apart together’ causes a lot of tension and the love birds grow apart.
After having finished her PhD in August 2008 Anna decides to leave Italy. In January 2009
she settles in Hamburg, Germany, as she has been offered a fantastic position there. On 1
January 2011 she takes a rigorous decision: she applies for divorce and sends Francisco an E-
mail to inform him.
a) The court(s) of which country or countries in the European Union have jurisdiction
to hear her application for divorce? (3 pts)
See Brussels IIbis Regulation (Regulation EC 2201/2003 of 27 November 2003) that may be
applicable if the scopes of this instrument are fulfilled: Material Scope: see art. 1: civil
matters, more specifically relating to divorce; the case deals with divorce (civil matter), so the
material scope is fulfilled; Formal (personal/geographical) Scope: see arts. 3-7 incl. Sundelind
–Lopez case as the formal scope of this regulation is rather unclear, a spouse must have
his/her habitual residence in (for UK or Ireland domicile in) or nationality of one of the
member states (except for Denmark, see article 2)(if these requirements cannot be met, see
Sundelind-Lopez-case); in this case the defendant ánd applicant are habitually resident in
(different) member states, as the defendant is habitually resident in ( and is national of) Italy
and the applicant is habitually resident in Germany for more than a year; so the formal scope
is fulfilled; Temporal Scope: arts. 64 jo 72, the provisions of this Regulation shall apply only
to legal proceedings instituted after its date of entrance into force, i.e. after 1 August 2004; in
this case Anna has applied for divorce after 1 August 2004, namely on 1 January 2011, so the
temporal scope is fulfilled as well; Conclusion: all scopes have been fulfilled and therefore
the Brussels IIbis regulation is applicable in this case; Hence, the following courts of the
Member State may (alternatively) have jurisdiction on the following grounds pursuant to art.
3 section 1 sub a Br. IIbis Regulation (taken into account that Anna (nat. of your country,
residing in Germany for more than 1 year) is applicant, and Francisco (Italian national of and
habitual residence/domicile in Italy) is defendant): - last habitual residence spouses in so
far as one still resides there: court of Italy, or
- habitual residence respondent: court of Italy, or
- habitual residence applicant if he/she resided there at least a year immediately before the
application: court of Germany, or
German or Italian participants may have mentioned one of the following options instead of or
next to one of the three relevant options mentioned above:
- if Anna is German: habitual residence applicant if he/she resided there for at least six
months before application and is national of that MS: court of Germany;
- pursuant to art. 3 section 1 sub b if Anna is Italian: common nationality: court of Italy
So, the courts of Italy or Germany may alternatively have jurisdiction and therefore Anna has
the choice between an Italian or German court.
b) If a court of your country has jurisdiction, which law is applicable to the divorce?
(2 pts)
There are no indications for a choice of law in the case!
- Austria: art. 20 jo. 18 IPRG:

Last common habitual residence if one person still lives there: Italian law; – BE: art. 55 &1
sub 2 WbIPR:
last common habitual residence if one still resides there at moment of application: Italian law;
(not very likely in the case, but in theory possible: &2 sub 2: a restricted choice of law for
Belgian law at first appearance); – Bulgaria: art. 82 section 2 PIL code of 2005:
(No common nationality, no common hab. res.), Bulgarian law; – DE: art. 17 jo 14 (1 sub
2) EGBGB:
Last common habitual residence, if one still lives there: Italian law; – EN/Scotland: lex
fori;
– ES: art. 107 (2) Código civil:
Last common habitual residence, if one still lives there: Italian law; – Finland: section 120
Marriage Act:
Finnish law; – FR: art. 309 Code Civil:
Identification of an applicable foreign law by its own c.r. (Italian law in acc. with art. 31
Legge 218/1995), but if no foreign law is applicable whereas the French court has
jurisdiction: French law; – Georgia: art. 47 jo. 45 PIL Act:
Law of last common hab. res. or with which the spouses have the closest connection: Italian
law; - Greece: art. 16 jo. Art. 14 Greek Civil Code:
where the spouses are nationals of different states before the marriage and their nat. does not
change after the marriage: the law of the state of their most recent joint habitual residence:
Italian law; – Italy: art. 31 Legge 218/1995:
If Anna is Italian: law of common nat.: Italian law; (The law of the state where the couple has
mainly lived: Italian law);
– NL: art. 1 section 1 sub c Wet conflictenrecht echtscheiding:
by absence of a common nationality or common hab. residence: Dutch law; – Norway:
Norwegian Law; – Poland: art. 18 Polish Private International Law Act:
(no common nationality and no common domicile), Polish law; – Portugal: art. 55(1) jo.
52(1, 2) Civil Code:
Law of country with which family life is deemed to be most closely connected: Italian law
(e.g. last hab.residence of spouses and Francisco is still residing there); – Romania: Act
105/92 art. 22 jo. 20:
law of country with which spouses have the most closest connection: Italian law (as last
common habitual residence and Francisco is still residing there); – Sweden: Act on certain
International legal relationships in respect of marriage and guardianship (1904/26 s.1, 3:4(1)):
Swedish law; – Switzerland: Art. 61 section 1 CPIL:
Swiss law; – Turkey: art. 14 (1) jo. Art. 13 (3) PIL Act:
(No common nationality, no common hab. res.), Turkish law.
Continuation of case
Francisco is very much hurt in his pride because of Anna’s message. Although he always
believed that only death could part them, he too decides to take steps. On 12 January 2010 he
initiates divorce proceedings before the Italian court of Rome.
c) Shall the Italian court accept jurisdiction? Explain why/why not. (3 pts)
The Italian court shall (probably) not accept jurisdiction, as Anna has already applied for
divorce at a German court on 1 January 2011 when Francisco initiates proceedings before the
Italian court on 12 January 2011. This is a situation of Lis Pendens (the situation in which the
same proceedings between the same parties are brought before courts of different member
states), see art. 19 Brussels II bis Reg. In this situation the second court seized, the Italian
court, shall of its own motion stay its proceedings until such time as the jurisdiction of the
court first seised, the German court, is established (art. 19 section 1 Br. II bis Reg.). Where
the jurisdiction of the first court seized, the German court, is established, the court second
seised, the Italian court shall decline jurisdiction in favour of that court (art. 19 section 3 Br. II
bis Reg.). (So, only when the first court seized, the German court, will not establish its
jurisdiction, the court second seized, the Italian court, may accept jurisdiction.)
d) Would a divorce order of the court which eventually had jurisdiction, be recognized
throughout the EU? (2 pts)
The divorce order shall in principle be recognized in the other member states of the EU
(except for Denmark, see art. 2 Br. IIbis regulation) without any special procedure being
required (art. 21 section 1 Br. II bis Reg.), but it shall e.g. not be recognized if the recognition
of the divorce order is manifestly contrary to the public policy of the MS in which recognition
is sought (art. 22 sub a Brussels IIbis Reg.). In the case at hand there is no manifest violation
of the public policy.
Case 1
A from Italy is the owner of an international company, which is producing organic olive oil
and operating in whole Europe. On 10 January 2011 A delivered 10 bottles olive oil to B, who
is living in Germany and who bought the bottles for his personal use.
They negotiated a payment at once within 4 days after delivery.
No agreement was made upon which law has to be applied in the case of any dispute.
Now that B is not paying, A comes to you and asks for legal advice.
a) Which court is competent, if A wants to start court proceedings? (3 pts)

To answer the question on the competence of a court the so-called Brussels I Reg. could be
applicable.
A. Applicability of the “Brussels I” Reg.

The rules of the Brussels I Reg. are only applicable, if the scopes of the Reg. at hand are
fulfilled.
a) Material Scope
The material scope of the Reg. is limited to civil and commercial matters according to Art. 1
sec. 1. In the present case a dispute arises on a payment agreed in a contract, which is a civil
matter. Therefore the facts of the case comply with the material scope.
b) Formal Scope
Furthermore the formal (geographical-personal) scope has to be checked. This scope of
Brussels I is regulated in Art. 2 sec. 1 and demands a significant regional connection to the
territory of the EU, which is established by natural persons by their domicile and by legal
persons, according to Art. 60 by their statutory seat, or central administration, or principal
place of business. In our case B is a natural person living in Germany and the company of A,
who is Italian is operating in whole Europe. Although we do not know from the facts of the
case where the company is registered or based, it is mentioned that the company is operating
in whole Europe and unless contradictory facts in the case this can be considered as the
company is registered in Europe. Therefore a significant regional connection as demanded by
Brussels I is given.
c) Temporal Scope
The Reg. applies according to Art. 66 sec. 1 for all legal proceedings after the entry into force
thereof. According to Art. 76 this Reg. is in force since the 1.3.2002. The present case has
taken place in January 2011. Therefore the temporal scope is also fulfilled.
Therefore the Brussels I Reg. is applicable.
B. Exclusive Jurisdiction and Prorogation of Jurisdiction

Neither an exclusive jurisdiction Art. 22 nor a prorogation of Jurisdiction according to Art. 23
is applicable.
C. Jurisdiction over consumer contracts

A court could be competent according to the rules on jurisdiction for consumer contracts.
As B bought the oil for his personal use, Art. 15 could be applicable.
No instalment credit terms or loan repayable by instalments was agreed in the contract.
Therefore Art. 15 sec. 1 a-b are not relevant.
However, the competence of a court could follow from Art. 15 sec. 1 c. Then the contract has
to be concluded with a person who pursues commercial or professional activities in the
Member State of the consumer's domicile or, by any means, directs such activities to that
Member State or to several States including that Member State. For Art. 15 sec. 1 c it is
sufficient that the contractual partner of the consumer operates any commercial or
professional activity in the Member State of the consumer. In this particular case the company
of A operates in whole Europe. Therefore, the conditions of Art. 15 sec. 1 c are fulfilled and
the rules on jurisdiction for consumer protection are applicable.
According to Art. 16 sec. 2 Proceedings may be brought against a consumer by the other party
to the contract only in the courts of the Member State in which the consumer is domiciled.
B is domiciled in Germany.
As a result, A is allowed to start proceeding against B only in Germany.
b) If either the Italian or the German court accepts jurisdiction, which law will be
applicable? (3 pts)
A. Application of the CISG

The CISG is not applicable according to Art. 2 lit. a) the CISG in this particular case, as the
oil is only for the personal use of B. Therefore the material scope of the CISG is not
established.
B. Application of Rome I
a) The case is closely related to Europe and takes place in 2011 and is on a civil matter, as
already stated above under Question b). Therefore the material scope, Art. 1, the formal scope
Art. 2 and the temporal scope, Art. 28 are fulfilled.
b) Choice of law:
No choice of law was made in the contract. Therefore Art. 3 is not relevant.
c) Consumer protection, Art. 6
According to Art. 6 a the contract shall be governed by the law of the country where the
consumer has his habitual residence provided that the professional pursues his commercial or
professional activities in the country where the consumer has his habitual residence. As
already stated above the company of A operates in whole Europe and B bought the oil for his
personal use only. Therefore the company of A also pursues activities in Germany and thus
German law shall govern the contract.
Case 2
Mr. Gainsbourg is a rich musician with French nationality. He was married to Mrs. Birkin
who is a British national. They divorced in 2010. Now Mrs. Birkin wants „her part“of the
fortune of Mr. Gainsbourg, in other words she wants maintenance.
She comes to you with the question:
c) Which court will be competent, if it comes to a dispute on maintenance? (2 pts)
To answer the question on the competence of a court the so-called Brussels I Reg. could be
applicable.
A. Applicability of the “Brussels I” Reg.

The rules of the Brussels I Reg. are only applicable, if the scopes of the Reg. at hand are
fulfilled.
a) Material Scope
The material scope of the Reg. is limited to civil and commercial matters according to Art. 1
sec. 1. In the present case a dispute arises on a maintenance claim. According to Art. 5 Nr. 2
maintenance issues are civil matters in the meaning of Brussels I. and thus are covered by the
material scope.
b) Formal Scope
Brussels I is regulated in Art. 2 sec. 1 and demands a significant regional connection to the
territory of the EU, which is established by natural persons by their domicile. Both persons
involved are persons with the nationality of a Member State of the European Union. Although
we do not know from the facts of the case where these persons are domiciled, unless
contradictory facts in the case it can be considered that both are domiciled in the country of
their nationality. Therefore a significant regional connection as demanded by Brussels I is
given.
c) Temporal
The Reg. applies according to Art. 66 sec. 1 for all legal proceedings after the entry into force
thereof. According to Art. 76 this Reg. is in force since the 1.3.2002. The present case after
the enforcement of the Reg. Therefore the temporal scope is also fulfilled.
Thus the Brussels I Reg. is applicable.
B. Exclusive Jurisdiction and Prorogation of Jurisdiction

Neither an exclusive jurisdiction Art. 22 or a jurisdiction according to Art. 15-19, nor a
prorogation of jurisdiction according to Art. 23 is applicable.
C. General Jurisdiction
According to Art. 2 persons domiciled in a Member State shall be sued in the courts of that
Member State. Mr. Gainsbourg is British national and as already stated above it can be
considered that he is also living in the UK (if someone argues that he is living in France, this
could also be reasonable). Therefore Mrs. Birkins can sue him at a court in the UK.
D. Special Jurisdiction
According to Art. 5 Nr. 2 a person domiciled in a Member State may, in another Member
State, be sued in matters relating to maintenance, in the courts for the place where the
maintenance creditor is domiciled or habitually resident. Thus Mrs. Birkins, the maintenance
creditor, can sue Mr. Gainsbourg in also in France (if someone argues that she is living in the
UK this could also be reasonable), where she is domiciled.
As a result Mrs. Birkins can sue Mr. Gainsbourg in the UK, according to Art. 2, and in France
,according to Art. 5 Nr. 2.
Question:
d) Explain as to whether or not the following proposition is correct:
‘An agreement on the jurisdiction according to art. 23 I Brussels I always prevails!’ (2 pts)
The statement is not correct.
An agreement on jurisdiction, according to Art. 23, does not always prevail. This follows
from Art. 22, which stipulates some exclusive jurisdictions. These jurisdictions are mandatory
and displace jurisdictions according e.g. to Art. 2, 5 and 6. But also prorogation and
derogation, according to Art. 23 and Art. 24, do not found a jurisdiction deviating from Art.
22.
a) Explain the concept of the so called „renvoi“ (including the „renvoi au premier
degree“ and the „renvoi au second degree“ or in English „remission“ and „transmission“) (2
pts)
The situation can appear that the lex causa does not accept the reference made by the conflict
rule of the forum (the lex causae may refer back or further, see below), if the foreign conflict
rule contains a different connecting factor than the conflict rule of the forum. This can only
happen if the conflict rule of the forum refers to the law of another state including its Private
International Law (conflict rules). If not, it is a reference to the substantive law of the other
state and thus there is no possibility for a renvoi. If the conflict rule of the lex causae refers
back to the law of the forum it is called renvoi au premier degree/remission (for example as in
the “Forgo” case) and if it refers (further) to a third countries law, renvoi au second
degree/transmission.
b) Explain whether or not the following proposition is correct: ‘Renvoi leads always to
international harmony of decisions’. (2 pts)
The renvoi does not always lead to international harmony on decisions. It depends.
It leads to international harmony of decisions in the sense that foreign law is not applied
against its own “will”, in other words when referring directly to the substantive law, it could
happen that this application is against its conflict rules and imposes the application of the own
law. It leads to international harmony of decisions especially in the case of renvoi au second
degré and if the reference is accepted by this country.
It does not lead to international harmony, when the reference especially in case of renvoi is
suspended, in cases of renvoi au premiere degree.
c) Name 2 PIL techniques or methods that contribute to the goal of international harmony of
decisions. (2 pts)
Two examples are:
- unification of conflict rules, as e.g. in Rome I and II
- unification of substantive law, as e.g. CISG
d) Explain:
a. in which kind of situations the „ordre public“ (public policy) principle has to be applied;
b. how is the ordre public principle defined; c. what is meant with the „relative”
character of the „ordre public“ principle. (3 pts)
a) The ordre public principle has to be applied in cases, when the application of foreign law
(or the result after the application of foreign law (e.g. in the case of recognition) leads to
results which are incompatible with fundamental principles and norms (rights) of the national
legal system (forum state). In these circumstances the foreign law is not applied (or: the result
will e.g. not be recognized).
b) The ordre public principle can be defined as the entirety of fundamental principles and
norms of a national legal system. These can e.g. be found as civil rights in the constitutions of
the countries. But also in international conventions or treaties, e.g. in the ECHR, as far as
these instruments are part of the national law. Furthermore in the protected goods and rights
in the criminal codes.
c) The relative character of the ordre public means that this principle needs a significant
connection between the case and the domestic law in order to be applied or invoked; this may
vary from case to case. But also that the rights protected by the ordre public, e.g. civil rights
are not absolute and are subject to changes in time and/or place.
e) What is a “conflit mobile”? (1 pt)

Basically a conflict mobile is the change of the circumstances, e.g. change of nationality or
change of domicile or change of habitual residence, so that the outcome of a conflict rules is a
different one than before the change. Therefore the connecting factor remains the same, but
the underlying facts are changed. For example “lex rei sitae” is the connecting factor of the
conflict rules and a good is moved to another country. Here the facts and the outcome change,
but the rules stay the same.
A reason for a conflict mobile in a broader sense is that a conflict rule as such is revised, e.g.
reform of a Private International Law code. Another reason is a so called
“Zuständigkeitswechsel” of a court, which means the change of the competence of a court.
a) Explain the method of the Statutists to determine the applicable law (2 pts.):
They made use of the so-called unilateral conflict rules. The starting point of their method is
the legal rule itself: the function, characteristics/nature and contents of the rule determine (the
scope of) its international applicability. It is therefore a direct and non-abstract method.
The statutists made a distinction in statuta realia (immovables), statuta personalia (restricted
category of personal law), statuta mixta (restgroup) governed by principle of territory.
The statute realia and mixta were governed by the principle of territory; the statuta personalia
by the principle of domicile.
b) Theoretical basis for the application of foreign law according to the Dutch
Statutists? (1 pt)
Statutists: comitas (‘courtesy’): the states had to mutually tolerate and accept each others laws
within their borders ex comitate;
c) Explain as to whether or not the following proposition is correct:

‘the choice of law based on party autonomy is not an alien element to the classical method of
choice of law by Von Savigny’. (3 pts)
The choice of law by the parties represents the so-called subjective connecting factor: the
parties themselves make a choice for the applicable law to the international case. The method
of V. Savigny implies that the international legal relationship/case has to be brought there
where it belongs, i.e. to its Seat/Sitz = the closest related legal system (law) by means of the
connecting factor (proximity theory). The connecting factor is the link between the
international legal relationship and the closest related legal system and thus refers the int.
legal relationship to the closest related national legal system. Therefore the question for the
appropriate connection factor is important: which aspect of the international legal relationship
refers to the legal system that is the closest related to the int. legal relationship? In principle
this can only be the objective connecting factor as the subjective connecting factor of choice
of law by the parties may not necessarily lead to the closest related legal system which is a
requirement of the Savignian method of choice of law. In that respect the choice of law by the
parties is an alien element to the system of v. Savigny and thus the proposition is incorrect.
There is, however, a justifying reasoning possible: the choice of law by the parties may be a
solution, as ultimum remedium, if the reference to the most closely related legal system is not
possible by the ‘normal’ objective connecting factor. In order to be somehow in accordance
with the Savignian system, the chosen law can then only be a law which is involved in the
case. The thus restricted choice of law as ultimum remedium is then not an alien element to
the Savignian system.
d) What is meant by special mandatory rules (2 pts)?

Special mandatory rules are substantive rules of a semi-public legal character which - when
they fit into the scope of the case - have to be applied irrespective of the otherwise applicable
law in order to protect the public interests (economical, political and social organisation) of
their state of origin. See also definition in art. 9(1) Rome I reg.
If not one of the elements as mentioned above, has been mentioned, e.g. the following
answers have been accepted and graded as well:
These SMR can be either domestic or of a third state. The international applicability of SMR
is determined by the function, nature and contents of the rule itself in combination with the
state’s/public’s interest in it’s applicablity and therefore the SMR contain an unwritten scope-
rule (1 pt). Neo-statutists’ method.
Explain the following Latin terms:

e) Forum non conveniens (1 pt): development in common law countries à court that would
have jurisdiction according to international competence rules is free under the particular
circumstances of a case to decide to decline jurisdiction, or at least to order a stay if foreign
court appear to be the more appropriate court.
f) Favor divortii (1 pt):

Literally: favouring the divorce, in other words: to facilitate that a person obtains a divorce or
at least that the law (PIL rules) does not hinder (one of) the spouses obtaining a divorce, or to
uphold the validity of the divorce. See e.g. art. 1 WCE (Dutch PIL Act relating to divorce) or
the arts. 14 jo 17 EGBGB: the use of the subsidiary or stairs of connecting factors refers to
and furthers the favor divortii by providing for several possibilities of applicable laws to
divorce and especially by providing for the applicability of the Dutch or German law to
divorce in the case that the marriage cannot be dissolved in accordance with the other
possibilities. Favor divortii can also be used in relation to (a policy for) recognition and
enforcement of foreign divorce decrees.
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UNIVERSITEIT MAASTRICHT– FACULTY OF LAW
EXAMINATION PAPER
DATE: TUESDAY 31.01.2012

TIME: 09.00 – 12.00 H
AVAILABLE TIME: 3 HOURS
STUDY: EUROPEAN LAW SCHOOL
DAYPROGRAMME
STACE OF STUDY:
BACHELOR PROCRAMME
NAME OF THE COURSE:

PRIVATE INTERNATIONAL LAW (PRI3018)
ACADEMIC YEAR:
2011/2012
YOU MAY USE:
European regulations and international treaties, other private international law- and
national statutes in English and/or your own language (also copies or downloaded
materials), all non-legal bilingual dictionaries, without any handwritten notes or other
additions. Highlighting and underlining of sentences or parts of sentences is allowed,
however.
EXAMINATION:
This examination consists of 3 questions
ALL questions have to be answered!
START EVERY QUESTION ON A NEW SHEET OF PAPER.
EXAMINATION RESULTS:
The results of this Examination will be published within 4 weeks.

(Section 33, paragraph 1 Education and Examination Regulations)

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INSTRUCTIONS:
1. Leave your student identity card on your table, as well as all the books you are allowed to
use.
The books and downloads/copies may not contain any handwritten notes or other
additions.
2. You are requested not to use more than one sheet of paper for each question.
Please fill in, fully and clearly, all required information at the top of each sheet
before you start with the exam.
3. You are not allowed to write left of the left margin line.
5. Always use a pen to answer the question; never use a pencil.
6. You are not allowed to use Tippex or another correction fluid.
7. Do not refer to answers in other questions.
8. Give arguments for your answers and include references to relevant legislative provisions
and caselaw.
RULES OF ORDER:
1. You are not allowed to leave the exam room during the first thirty minutes
of the exam.
Any kind of deliberation with other students is prohibited.
2. With the exception of such electronic equipment as may be listed on the cover page, the
use of electronic equipment or cell phones is not permitted during the exams.
All electronic equipment have to be turned off and put in your bag. It is not allowed to use
the clock or calculator function of a cell phone. If any electronic equipment (i.e. cell
phones) is found on a student (in pocket or jacket) during the exam, the student's exam
will be declared invalid.
3. You are not allowed to stand up and walk in the exam room or even to leave the room
without permission of one of the invigilators.
Please notify one of the invigilators if you have to leave the room, for instance to go to the
lavatory.
4. When you have finished, please check all the required information at the top of each
sheet of paper and hold up your hand. One of the invigilators will come to you to receive
your papers and count the number of sheets. After submission of your paper, please
leave the room quietly.
COOD LUCK!!

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Extra note before answering the questions: please make sure that you mention all the
relevant legal provisions and/or case law on which you base your answers! Please give a
reasoned, detailed and structured answer.
QUESTION 1
Case ‘Till death do us part?‘

The German Dieter and the Portuguese Maria have met each other during the Summer
Course on Public International Law at the prestigious Hague Academy in The Hague, the
Netherlands in 2006. They fall in love, marry in 2007 and settle in The Hague as they
both have found a challenging job at the International Court of Justice.
After a marriage of four years, Dieter falls in love with his old neighbour Sylvia and
moves back to Hamburg, Germany in January 2012. Maria, totally devastated, quits her
job and permanently returns to Portugal a month later. In Summer 2012, it turns out that
Sylvia is pregnant. Maria is outrageous because of the ‘good’ news and understands that
her marriage is finally over. Dieter initiates proceedings to divorce Maria on 3
September 2012 at the German court. In the meanwhile, Maria has applied for divorce at
the Portuguese court on 1 September 2012 as it appears from the document that has been
served upon Dieter.
a) Which of the two seized courts will have international jurisdiction in this
case?
In answering this question please also determine for each of the courts
whether and on which grounds it can have jurisdiction. (5 pts)
Continuation of the case

Maria remembers that she has once heard about the law of the Netherlands as being a
highly favourable law in respect of divorce. Therefore she wants the competent court to
apply the law of the Netherlands.
b) Which law will be applied by the competent court to the divorce claim?(4 pts)

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c) Will the divorce order by the competent court be recognized in other states
than that of the forum? Motivate your answer. (1 pt)
QUESTION 2
Case 1
Mrs. Smith (seller, habitually residing in State A) and Mr. Johnston (buyer, habitually
residing in State B) meet in State A where they agree upon the purchase of a number of
carpets, that are stored in a storehouse located in State B.
Afterwards a dispute arises concerning the ownership of the carpets Johnston has bought.
According to the conflict rules of State A the lex rei sitae would be applicable to the
dispute. However, according to the conflict rules of State B, the lex loci contractus
celebrati would be applicable.
The dispute is brought before the court of State A.
a) Will it be relevant whether State A accepts or rejects the theory of renvoi

with regard to the answer which law will govern the ownership dispute?
In answering this question, please argue which law would be applicable if
renvoi is not accepted in State A respective which law would be applicable if
renvoi in fact is accepted in State A. Do not forget to explain the meaning of
the Latin expressions and the renvoi-concept. (4 pts)
Case 2
Mohammed is polygamous married to both wife Balima and wife Charisha. Both
marriages were validly celebrated in accordance with the law of the State where the
celebration took place. The marriage between Mohammed and Charisha is dissolved by
divorce. Charisha sues her ex-husband before a national court of one of the EU-member
states (State X) where she and Mohammed lived, and claims for maintenance.
b) Determine and argue from a PIL-perspective whether recognition of the

validity of the marriage between Mohammed and Charisha in State X can be
a prerequisite in order to possibly invoke a maintenance claim. (1 pt)
c) Describe the two approaches of the authorities of State X with regard to the
validity of the marriage in respect of such a maintenance claim? (3 pts)

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CONTINUATION QUESTION 2 SEE NEXT PAGE

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CONTINUATION QUESTION 2
In the historic overview of the main schools of thought in private international law the
name Carl Friedrich van Savigny appears to be of the utmost importance. In his ‘System
des heutigen römischen Rechts’ (1849) he introduces a new method and theory, the so-
called ‘theory of proximity’. Von Savigny is still considered to be one of the pioneers in
private international law as he breaks with the tradition of the Statutists.
d) Name and describe two differences between the method of Von Savigny and
the method of the Statutists. (2 pts)

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QUESTION 3
Case 1 ‘Beckham’
In the January 2012 issue of the magazine “Intouch“ the following has been written on
the cover page and on page 5 close to a picture of David Beckham [hereinafter ‘Becks’]:
“Exclusive – Becks talks for the first time about the real reason why he was transferred to
the football club Paris St. Germain in December 2011 – his marriage with Victoria
Beckham is at the end“.
Furthermore it is stated in the table of contents of the magazine and in the heading on
page 5: “Becks in an exclusive interview“ – “Becks is happy with a new young woman at
his side.“
In fact the interview never took place. David Beckham did not start playing football for
Paris St. Germain and is still happily married to Victoria Beckham. The picture on page 5
of the magazine was made by paparazzi.
The magazine is printed and distributed from Berlin, Germany. The magazine is not only
published in Germany, but worldwide and also in France.
David Beckham who is living in France since the end of 2011 asks you for legal advice.
He wants compensation for violation of his privacy and asks you the following two
questions:
a) The court of which country or countries in the EU will have international

jurisdiction to hear my claim? (5 pts)
b) Suppose that there is a judgement of a court in Germany. Is it possible to

enforce that judgement also in France? (1 pt)
CONTINUATION OF QUESTION 3, SEE NEXT PAGE

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Case 2 ‘the after ski-party’

Max Becker from Germany was in his winter holidays in 2011 in France with his family.
During his holidays he crashed into Alessandro Alevessi, an Italian, on a ski slope. It was
Max Becker’s fault. Both could not discover any injury directly after the accident on the
ski slope.
However, after his return Alessandro A. felt that his left eye got extremely weak. He went
to a doctor in Rome where he lives and the doctor found out that the nerve of the eye was
injured due to the ski accident. He treats the eye.
Now, Alessandro wants his medical treatment costs, amounting to 2500€, compensated.
c) Which law will be applicable to the claim? (4 pts)

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UNIVERSITEIT MAASTRICHT– FACULTY OF LAW
EXAMINATION PAPER
DATE: Wednesday 11 APRIL 2012

TIME: 09.00 – 12.00 H
STUDY: EUROPEAN LAW SCHOOL
DAYPROGRAMME
STAGE OF STUDY:
BACHELOR PROGRAMME
NAME OF THE COURSE:

ACADEMIC YEAR:
2011/2012
ANSWER MODEL
This model answer is meant to provide for an
indication of the correct answer. It does not
exclude that other alternatives which are not
explicitly mentioned below, can be correct as well.
These will then have been assessed and graded as
such.
Case ‘The notorious ‘seven years itch’’

In 2004 the wealthy Henri de Rothschild from France marries Claudia Schiller, a rather
well known top model from Germany. From that year on they live in France. In 2005
their marriage is blessed with the birth of their son Nicolas. Last year, however, Henri
was struck by the notorious ‘seven years itch’. As he participated in an academic summer
course which was organized by Maastricht University, he met ‘someone new’, the
ravishing Italian beauty Sophia. He abandons Claudia and settles in Rome, Italy in
December 2011.
In August 2012 Claudia decides to divorce as it has become clear to her that Henri will
never return again. She has a slight preference to start divorce proceedings at the German
court and for German law to be applied to the divorce. After all, she is a German citizen
of origin and thus more familiar with the German legal system. She turns to you for legal
advice:
a) Will the German or any other court(s) have international jurisdiction to

hear my divorce claim? Please motivate your answer (3,5 pts)
Answer:
In order to find out whether the German or any other court(s) has and accepts international
jurisdiction, one has to check the relevant instrument. In this case Regulation (EC) No 2201/2003
of 27 November 2003 or the Brussels IIbis Regulation may be applicable if the scopes of this
instrument are fulfilled.
A. Applicability of the Brussels IIbis Regulation
a. Material Scope: see art. 1: civil matters, more specifically relating to divorce; the case
deals with divorce (civil matter), so the material scope is fulfilled;
b. Formal (personal/geographical) scope: see arts. 3-7. A spouse must have his/her habitual
residence in (for UK or Ireland domicile in) or nationality of one of the member states
(except for Denmark, see article 2). In this case the spouses are habitually resident in and
nationals of (different) member states, as Henri is habitually resident (for more than half
a year) in Italy and national of France and Claudia is habitually resident (for more than
one year) in France and national of Germany; so the formal scope is fulfilled; (NB: the
formal scope of this regulation is rather unclear; if the abovementioned requirements
cannot be met, see Sundelin-Lopez-case).
c. Temporal Scope: arts. 64 jo 72, the provisions of this Regulation shall apply only to legal
proceedings instituted after its date of application, i.e. after 1 March 2005; in this case
Claudia applied for divorce after 1 March 2005, namely in August 2012, so the temporal
scope is fulfilled as well;
Conclusion: all scopes have been fulfilled and therefore the Brussels IIbis regulation is
applicable in this case.
B. Will the German or any other court(s) have international jurisdiction to hear Claudia’s
divorce claim?
See art. 3 section 1 sub a Br.IIbis Reg . which provides the relevant grounds for jurisdiction:
N.B. As Claudia applies for divorce, she is the applicant whereas Henri is the respondent!
- second indent: court of last habitual residence of the spouses insofar as one still resides
there: last hab. res. of spouses was France and Claudia still resides there, so France;
- third indent: court of habitual residence respondent: Henri currently has hab. res. in Italy,
so Italy;
- fifth indent: court of habitual residence applicant > 1 year: Claudia has her hab. res. > 1
year immediately before the application in France, so France;
Conclusion: Pursuant to art. 3 section 1 Br. II Reg. the German court has no international
jurisdiction to hear Claudia’s divorce claim. Claudia has the choice to file for divorce at the
French or the Italian court pursuant to art. 3 section 1 sub a Br. IIbis Reg.. You may argue that
she, most likely, will choose for the French court as she is habitually residing in France.
b) Which law, German law or another law, will be applied to the divorce claim
by the competent court? (3 pts)
Answer:
In order to find out which law, German or another law, will be applied by the competent court,
e.g. by the court of France as Claudia resides in France, one has to check the relevant instrument.
In this case Council Regulation (EU) No 1259/2010 of 20 December 2010 or the Rome III
Regulation is applicable if the scopes of this instrument are fulfilled. Furthermore, it is relevant
that the Regulation is only in force in the participating MS (Belgium, Bulgaria, Germany, Spain,
France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia) as
from 21 June 2012 as it has been established on the base of enhanced cooperation pursuant to
arts. 326-334 TFEU. So both the courts of France and Italy, as courts of participation MS, may
use this Regulation if the scopes have been fulfilled as well.
A. Applicability of the Rome III Regulation
a. Material Scope: see art. 1: divorce and legal separation situations involving a conflict of
laws; the case deals with such a divorce situation, so the material scope is fulfilled;
b. Formal (personal/geographical) scope: see art. 4: universal application; the instrument
applies to anybody/anywhere, so the formal scope is fulfilled;
c. Temporal Scope: art. 18 in conn. with art. 21, the provisions of this Regulation shall
apply only to legal proceedings instituted as from 21 June 2012; in this case Claudia
institutes the divorce proceedings in August 2012, so the temporal scope is fulfilled as
well;
Conclusion: all scopes have been fulfilled, the Regulation is in force in France (and also in Italy)
and therefore the Rome III regulation is applicable in this case.
B. Which law, German or another, will be applied by the competent court?

See Rome III Reg.
I. It can be argued that there are no indications for a valid choice of law made pursuant to art. 5
Rome III Reg: the valid agreement between the spouses lacks. Then see art. 8 sub b Rome III
reg.: law of last habitual residence of the spouses insofar as common residence did not end > 1
year before seizure of court and one spouse still resides there: spouses had last common hab. res.
which did not end > 1 year before seizure of court in France, so French law.
Conclusion: the competent court will apply French law pursuant to art. 8 sub b Rome III Reg.. It
cannot apply German law to the divorce claim pursuant to art. 8 Rome III Reg. or pursuant to art.
5 Rome III Reg. as there is also no valid choice of law.
Or:
II. It can be argued that Claudia tries to reach an agreement with Henri (if the law of the forum so
provides) about German law as the applicable law before the court during the course of the
proceedings pursuant to art. 5 section 3 in connection with art. 5 section 1 sub c (the law of
nationality of either spouse at the time of conclusion of the agreement).
Conclusion: if she and Henri agree and if the law of the forum so provides, then German law as
chosen by the parties will be applicable to the divorce claim pursuant to art. 5 section 3 in conn.
with art. 5 section 1 sub c Rome III Reg.
Continuation of the case:

Claudia is of the opinion that she is entitled to a considerable maintenance allowance for
herself in accordance with her actual life style and status. After all, she has given up her
glorious career as top model in order to take care of her husband, son and the household.
She asks herself whether the court which is competent in the divorce case or another
court will have international jurisdiction concerning her maintenance claim. And again
she turns to you with the following question:
c) Will the Dutch or any other court(s) have international jurisdiction to

deal with my maintenance claim? Please motivate your answer (3,5
pts)
Answer:
In order to find out whether the Dutch court or any other court(s) has and accepts international
jurisdiction, one has to check the relevant instrument. In this case Council Regulation (EC) No
4/2009 of 18 December 2008 or the Maintenance Regulation may be applicable if the scopes of
this instrument are fulfilled.
A. Applicability of the Maintenance Regulation
a. Material Scope: see art. 1: maintenance obligations arising from a family relationship,
parentage, marriage or affinity; the case deals with a maintenance claim arising from
marriage, so the material scope is fulfilled;
b. Formal (personal/geographical) scope: rather unclear; see e.g. art. 3: all cases in matters
relating to maintenance obligations in MS; art. 6 expands the scope also to defendants
having their habitual residence outside the EU; the case deals with a maintenance claim
from a person residing in France, so the formal scope is also fulfilled.
c. Temporal Scope: arts.75 (1) in connection with art. 76; Claudia claims maintenance in
August 2012; this date is after the instrument’s date of application as from 18 June 2011,
so the temporal scope is fulfilled as well;
Conclusion: all scopes have been fulfilled and therefore the Brussels IIbis regulation is
B. Will the Dutch or any other court(s) have international jurisdiction to deal with my
maintenance claim?
N.B. As Claudia claims maintenance, she is the applicant whereas Henri is the defendant!
See the Maintenance Reg. (MR): in the absence of a valid choice of court (no agreement)
pursuant to art. 4 MR, see for the competent court(s) art. 3 MR.:
(most likely) art. 3 sub c MR: the court with jurisdiction to entertain the divorce proceedings as
the matter relating to maintenance is ancillary to those proceedings and the jurisdiction is not
based solely on the nationality of one of the parties = French or Italian court pursuant to art. 3
section 1 sub a Br. IIbis reg. (depending on Claudia’s choice for one of these courts as competent
court for the divorce).
Because of the alternative formulation of art. 3, see also art. 3 sub a MR: court of the habitual
residence respondent = Italian court, or art. 3 sub b MR: court of habitual residence creditor:
French court.
Conclusion: the Dutch court has no international jurisdiction to deal with Claudia’s maintenance
claim. Claudia has the choice between the French and the Italian court pursuant to art. 3 MR. You
may argue that she, most likely, will opt for the French court to deal with her maintenance claim
as she habitually resides in France.
Case
X, domiciled in State A, agrees with Y, domiciled in State B, upon the purchase of a
painting of the famous artist Z. Z is the most well-known artists ever of State B. The
parties choose their agreement to be subjected to the law of State A (choice of law). In
order to protect its cultural heritage, the legislation of State B prohibits the export of
paintings of artist Z. As a result Y cannot deliver the painting to X. X therefore sues Y in
a court of State B.
a) How would you qualify the rule of State B that prohibits the export of
paintings of artist Z (or: What kind of PIL-rule does this rule reflect?)? (½
pt)
Answer:
Special mandatory rules/super mandatory rules/overriding mandatory rules (SMR)
b) Should this rule be taken into account by the court of State B (even if the
conflict rules of State B allow parties to make a choice of law)? (1½ pts)
Answer:
Yes, SMR have to be taken into account, irrespective the (otherwise) applicable law,
definitely the SMR of the forum, i.e. the SMR of the legal system of the court in which the
defendant has been sued (Court of State B), cf. article 9 Rome I Regulation. Parties may
have chosen for the law of State A as the applicable law, SMR of State B nevertheless must
be taken into account.
c) Suppose the answer to the previous question (question b) should be

affirmative, would this approach be in accordance with:
i. The theory of Von Savigny?
ii. The theory of the neostatutists (or: policy evaluation method)?
Please motivate your answers. (2 pts)
Answer:
i. No, the acceptance of SMR’s is not in accordance with the theory of Von Savigny.
Starting point to find the applicable law for Von Savigny is the international
relationship. The aim is to find the most closely connected law (the seat where the
relationship belongs). Therefore he developed the multilateral conflict rules and the
use of connecting factors that are neutral, blind and abstract. The contents of the law
to be applied, is not relevant. Whereas the theory of the SMR starts with the contents
and importance of the rules.
ii. Yes, the neostatutists use the substantive rules and the contents of the rules as starting
point in determining the applicable law. The contents, meaning, the protection of
(governmental) interests aimed at etc, are decisive. SMR function in a comparable
way (cf. the description of SMR’s in art. 9 par. 1 Rome I Regulation).
d) The application of which of the following ‘principles’ could in the case

described above lead to the application of the law of State A?
i actor sequitur forum rei
ii exceptio litis pendentis
iii forum actoris
iv lex loci solutionis
Please motivate your answers. Furthermore, don’t forget to explain the
meaning of all four Latin expressions mentioned above. (2 pts)
Answer:
i. Actor sequitur forum rei: the plaintiff follows the court of the defendant; the
defendant is sued in the court of the place where he (the defendant) is domiciled, (the
so called natural forum). This principle concerns the competent court, and doesn’t
say anything about the applicable law.
ii. Exceptio litis pendentis: the exception to the rules of international competence on the
ground that the same dispute between the same parties is pending before another
court. This principle does not refer to any applicable law.
iii. Forum actoris: the court of the plaintiff; competence of the court on the base of the
domicile of the plaintiff. This principle concerns the competent court, and doesn’t say
anything about the applicable law.
iv. Lex loci solutionis: the law of the place of performance of the relevant obligation. If
the contract had to be performed in State A, this principle indeed would lead to the
application of State A.
e) Explain how the dependent approach of the preliminary or incidental

question functions. Illustrate your explanation by an example. This may be a
fictitious one. (2 pts)
Answer:
The preliminary or incidental question concerns a question that arises when a main question
is dealt with, and which has to be answered before the main question can be answered.
Example: one can only divorce (main question) if one is validly married (preliminary or
incidental question). Following the dependent approach means that the preliminary question
is answered according to the same law that (according to the PIL of the forum) has to be
applied on the main question. Example: if the court of State A has to deal with a divorce
(main question), and if the divorce, according to the PIL-rules of State A is governed by the
law of State B, the validity of the marriage (preliminary question) also has to be answered
according to the law of State B (and not according to the PIL-rules of State A, which would
be the independent approach).
f) What has been the influence of the ideas of Bartolus de Saxoferrato on the
development of private international law? (2 pts)
Answer:
Bartolus de Saxoferrato was an Italian statutist who questioned the scope of the applicability
of the own law (statutes): extraterritorial application and applicability on foreigners. His
approach was a unilateral one in which he divided statutes to their subject (personalia and
realia) and determined the scope according to the words that where used by the legislator.
Case ‘the Zenith Chronomaster El-Primero Chronometer’

Christian Wolf is a German who wants to buy an antique watch for the first time in his
life. He is living in Hannover (Germany). In May 2011 a friend of him, Carsten
Mischmayer tells him about an Italian friend, who is selling his own antique watch.
Christian Wolf calls the Italian seller, Eros Rambazotti, living in Rome, the day after and
they agree on a deal of the Zenith Chronomaster El-Primero Chronometer of 1901. They
conclude a contract by mail in the German language. In the contract the price (120.000€)
and the date of delivery (the 11th of August) are mentioned. Furthermore, it is mentioned
in the mail that the payment has to be made after the delivery. Moreover, they agree on
the phone that the place of jurisdiction should be Hannover (Germany) in case of any
dispute. However, the agreement on the jurisdiction is not confirmed in written form.
In the meanwhile Christian Wolf has some financial problems, as he lost his job in June
2011. On the 11th August 2011 he receives the watch by a carrier, specialized in
expensive goods. Now, that Christian Wolf is in financial problems and no new job is
expected, he cannot observe his obligation, i.e. the payment.
Eros Rambazotti wants observance of the contract by Christian Wolf, so his money and
asks you for legal advice:
a) Which country’s law applies to the contract? (4 pts)
Answer:
I. Application of the 1980 - United Nations Convention on Contracts for the
International Sale of Goods (CISG)
a) Formal scope: Art. 1 sec. 1, Art. 10 lit. b) is fulfilled.

b) Temporal scope: contract was made after the CISG entered into force.
c) Material scope: according to Art. 2 lit. a) the CISG is not applicable in the case,
because the watch is only for the personnel use.
d) Conclusion: CISG not applicable
II. Application of REGULATION (EC) No 593/2008 OF THE EUROPEAN

PARLIAMENT AND OF THE COUNCIL of 17 June 2008 on the law applicable to
contractual obligations (Rome I)
a) Applicability of Rome I
1. Material Scope.
The material scope is determined by Art. 1 and requires a contractual obligation. Here the
claim for payment is based on a contract. Therefore the material scope is fulfilled.
2. Formal Scope
The formal scope in Rome I is a universal scope, Art. 2, which is fulfilled in the present
case as both parties are residing in member states and a European court would have
jurisdiction.
3. Temporal Scope
The temporal scope is mentioned in Art. 28, and as the contract was made after
17.12.2009, here in 2011, the formal scope is also fulfilled.
Rome I is applicable.
b) Choice of law: Art. 3 sec. 1?
aa) Here it should be discussed, whether or not, according to the facts of the case a choice
of law was made (indications for a choice of law according to the facts of the case).
bb) However Art. 3 sec. 1 sentence 2 requires: “The choice shall be made expressly or
clearly demonstrated by the terms of the contract or the circumstances of the case“.
aaa) the choice was not made „expressly“.
bbb) „clearly demonstrated by the terms of the contract or the circumstances of the case“:
perhaps an implied choice of law was made by the contracting parties, according to the
second alternative of Art. 3 sec. 1 sentence 2. Then the choice of law must result from the
content and circumstances of the contract with adequate certainty. Here the
circumstances of the case should be determined and discussed. Most important is the real
will of the parties and not the hypothetical will. In our case the parties obviously do not
made any agreement about the law which should govern the contract. They ony agreeed
on the jurisdiction. Concequently a supplement of their hypothetical party will can not
be justified on the basis of Art. 3 sec. 1 sentence 2.
According to the facts of the case no explicit or implied choice of law was made by the
parties!
cc) Conclusion for Art. 3 sec. 1: not applicable.

c) Consumer protection, Art. 6 sec. 1 lit a) and b)
There was no advertisement and no offer mentioned in the case. Furthermore, both
parties act as private persons. so that the consumer protection rule is not applicable!
Conclusion for Art. 6 sec. 1: not applicable.
d) Absence of choice of law: Art. 4 sec. 1

aa) Art. 4 sec. 1 lit. a): Definition of - sale of goods, habitual residence of the seller
Conclusion: Italian law is applicable. Therefore Art. 4 sec. 1 lit. a) is applicable.
bb) Alternative, Art. 4 sec. 3: Conditions “more closely connected with a country other
than that indicated in paragraphs 1“.
Students could come to the solution that this section is applicable, but than have to argue,
whether or not there is a closer connection to another country and reason it.
b) Which court(s) has/have jurisdiction? (5 pts)
Answer:
Application of Council Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters (Brussels I)
a) Applicability of Brussels I
1. Material Scope
The material scope of the Reg. is limited to civil and commercial matters according to
Art. 1 sec. 1. In the present case a dispute arises concerning the contractual obligation.
Claims concerning contracts are civil matters. Therefore, the facts of the case comply
with the material scope of the Brussels I Reg.
2. Formal Scope
Brussels I is regulated in Art. 2 sec. 1 and demands a significant regional connection to
the territory of the EU, which is established by natural persons by their domicile. In the
present case both parties involved, are based in Europe. Therefore, the formal scope is
also fulfilled.
3. Temporal Scope
The Reg. applies according to Art. 66 sec. 1 for all legal proceedings after the entry into
force thereof. According to Art. 76 this Reg. is in force since the 1.3.2002. The present
case has taken place in 2011. Therefore the temporal scope is also fulfilled.
Brussels I is applicable.
b) No jurisdiction according to Art. 23, as the agreement on the jurisdiction between the
parties was not confirmed in writing.
c) Art. 2:
According to Art. 2 Eros R. could sue Christian W. in country Germany.
d) Art. 5 sec. 1 lit. b), Art. 5 sec. 1 lit. c)
Note: The relationship between these two articles should be made clear!
Art. 5 provides special jurisdiction in addition to Art. 2. So the applicant can chose
between the general provision and the special one.
The car was delivered to Christian W.

Art. 5 sec. 1 b) could create jurisdiction in that country, if X is the place of performance.
The contract is concerned with the sale of goods. Furthermore both countries mentioned
in the case are EU member states.
Therefore Art. 5 sec. 1 lit. b) is applicable.
Problematic is how the place of performance/delivery has to be defined:

- here a discussion of the relevant case law is necessary, especially Car Trim.
See also Car Trim v. Key Safety, case C-381/08 (2010):
“Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on

jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters must be interpreted as meaning that where the purpose of contracts is the supply
of goods to be manufactured or produced and, even though the purchaser has specified
certain requirements with regard to the provision, fabrication and delivery of the
components to be produced, the purchaser has not supplied the materials and the supplier
is responsible for the quality of the goods and their compliance with the contract, those
contracts must be classified as a ‘sale of goods’ within the meaning of the first indent of
Article 5(1)(b) of that regulation.”
Therefore, the place of performance of the obligation in question, shall be the place in a
MS where, under the contract, the goods were actually delivered. In our case it is
Germany.
Essay Question
c) Please create one PIL example where the place of action (Handlungsort, or
place of occurrence of the event given rise to the tort) and the place of success
(Erfolgsort, or place where the harmful event results in damage) coincide
and one example where both places fall apart. (1 pt)
Answer:
a) Coincide:
Boris Becker from Germany crashed into the car of Ivan Lendl in Spain. Ivan Lendl is
hurt and cannot move his leg anymore. Furthermore, the car is almost destroyed.
b) Fall apart:
Helmut Cool stands at the German-French border on German territory and fires with
his pistol on a potential thief of his car on the French side of the border. Accidentally
he hits Ivan Inozent who was standing at the French side of the border.
MAASTRICHT UNIVERSITY – FACULTY OF LAW
COURSE EXAMINATION
DATE: THURSDAY 29 JANUARY 2015
TIME: 13.00 – 16.00 H

STUDY: EUROPEAN LAW SCHOOL / EUROPEAN LAW SCHOOL ENGLISH

TRACK
DAYPROGRAMME
STAGE OF STUDY: BACHELOR PROGRAMME
NAME OF THE COURSE: PRIVATE INTERNATIONAL LAW (PRI3018)
ACADEMIC YEAR: 2014 / 2015
ANSWER MODEL
NB: this model answer is meant to provide for an indication of the correct
answer. It does not exclude that other alternatives that are not explicitly
mentioned below, can be correct as well. These will then have been assessed
and graded as such.
QUESTION 1 (10 pts; corrector Benedicta Deogratias)
Case
Maria is Italian and David is a French national. They married in France in 2004. From then
until May 2014 they both worked and lived in Luxembourg, where their twins, a son, H, and a
daughter, Y, were born in May 2007, dual French-Italian nationals. David is a banker working
in Luxembourg.
In June 2014 Maria and the twins moved to France to be closer to David’s extensive family.
David remained in Luxembourg. By October 2014 the marriage is in serious difficulties.
You are a family lawyer in private practice. Maria comes to see you and asks for advice.
During the meeting, Maria passes you:
• a divorce petition dated 3 November 2014, which David has filed with the French
Courts and which has been served on Maria; and
• a French marriage contract which Maria and David signed upon marriage.
Questions:
NB: the Member States Luxembourg and France are bound by all relevant EU and
international family law instruments
a) What is the law applicable to the divorce? (4 pts)
i. Identify the relevant legal instrument - Rome III
ii. Assess the applicable scopes of Rome III based on the facts:
a. Material scope: Article 1: situations involving a conflict of laws relating to

divorce and legal separation; as the case deals with divorce (no excluded
matters pursuant to Article 1(2) Rome III Reg.) applicable.
b. Formal scope: Article 4 (UNIVERSAL FORMAL SCOPE) (and Article 3(1)

the court seised with the divorce (France) is a participating Member State and
is bound by Rome III); formal scope is fulfilled.
c. Temporal scope: Article 18 in connection with Article 21 (date of

applicability) Rome III. David files for divorce and starts the divorce
proceedings on 3 November 2014, so after 21 June 2012 (the date of
applicability of Rome III); therefore the temporal scope is fulfilled.
Conclusion: all scopes satisfied and therefore the Rome III regulation is
applicable to this case.
iii. Apply Rome III to the operative facts, principally to Article 5 and Article 8.
a) In accordance with the specific order of the Rome III regulation, first
determine whether there has been a choice of law in accordance with article 5
Rome III
Option 1
Article 5 Rome III - Explain the possible relevance of the marriage contract in
designating the law applicable to divorce and the restricted choice pursuant to
Article 5 (assess all whether the formal conditions of the agreement as set out in
Article 7 are satisfied):
§ Article 5(a) - choice for French law possible based on joint residence in
France at the time marriage contract concluded OR
§ Article 5(b) - not obviously applicable to our facts but possibly French
law OR
§ Article 5(c) - choice for French or Italian law OR
§ Article 5(d) - choice for French law.
§ NB: Article 5(2) limitation re designation of applicable law up until the
court is seised (on our facts the French court was seised on 3 December
2014). Article 5(3) provides that if the law of the forum (France) so
provides, spouses may designate the law applicable before the court
during the course of the proceedings.
Option 2
According to the facts of the case it does not seem as if the parties have made or
are planning to agree on the applicable law.
b) Article 8 Rome III - in the absence of a valid choice pursuant to Article 5 (the
facts of the case do not determine the point), apply general conflict rule of
Article 8 and the subsidiary connecting factors (hierarchy).
On our facts Article 8(a) not applicable as there is no common habitual

residents of the parties at the time the court in France was seized
Article 8(b) is applicable and therefore Luxembourg law is applicable as
Luxembourg is the place where the spouses had their last habitual resident,
David still resides there and not more than one year has passed since Maria
moved to France. Hence her residence in Luxembourg did not end more than
one year before the court in France was seized.
c) Conclusion: Applicable law = Luxembourg law (unless a joint and valid

designation in the marriage contract of French or Italian law made pursuant to
Article 5(a), (b), (c) or (d) OR, if available to the parties, Article 5(3)
designation made for French law).
b) Which court is competent to hear Maria's claim for spousal maintenance for
herself? (4 pts) + 0,5 Bonus point*
i. Identify the relevant legal instrument - Maintenance Regulation (MR).
ii. Assess the applicable scopes of MR based on the facts:
a) Material Scope: scope is limited; shall apply to maintenance obligations

arising from a family relationship, parentage, marriage or affinity, according
to Article 1(1) and Recital 11 provide that ‘maintenance obligation’ should be
interpreted autonomously. In the present case there is a claim for maintenance
(arising from a marriage). Therefore, the facts of the case comply with the
material scope of the MR.
b) Formal Scope: Is in fact unclear. There is no one specific provision that

regulates the FS. Susan Rutten contends that the Reg. can just be applied in
the participating MSs (Article 1(2) and that it will presumably come that the
FS has to be derived from the rules on jurisdiction.
Another argument is that the Regulation favours that the maintenance creditor
should be able to easily obtain in a participating MS a decision (which will be
automatically enforceable in another MS without further formalities; see
recital 9 MR and art. 17 MR). In this regard see also see recital 15 MR which
extends the FS by providing that the ‘circumstance that the defendant is
habitually resident in a third State should no longer entail the non-application
of Community rules on jurisdiction, and there should no longer be any
referral to national law’. The FS is further extended by the article 6 MR
(subsidiary jurisdiction) and article 7 (on forum necessitates) In view of these
remarks the facts of the case comply with the formal scope of the Reg.
c) Temporal Scope: In relation to jurisdiction see Article 75 (1) in connection

with Article 76 MR: proceedings instituted after the date of application of the
instrument, i.e. as from 18 June 2011. Maria wishes to apply for maintenance
in January 2015 which is after the date of application of the MR. Therefore
the temporal scope is also fulfilled.
Consequently the MR is applicable to determine which court of a MS has

jurisdiction.
iii. Apply MR to the operative facts, principally to Article 4/5 and Article 3.
a) Maria is the applicant and creditor and David is the respondent and debtor.
No clear indications for a choice of forum pursuant to Article 4 (although
query whether a choice of court was made in the marriage contract). The
jurisdiction conferred by the agreement is exclusive unless the parties have
agreed otherwise. No indications for a tacit prorogation pursuant to Article 5.
b) Apply general rule on jurisdiction of Article 3. According to Article 3
jurisdiction (alternative grounds, favour principle!) could lie with:
§ Article 3 (a) the court for the place where the defendant is habitually
resident, which is according to the facts of the case the court of
Luxembourg as David is living in Luxembourg OR
§ Article 3 (b) the court for the place where the creditor is habitually
resident, which is France as Maria is living in France (the term creditor
is defined by Article 2(10) MR) OR
§ Article 3 (c) the court which according to its own law has jurisdiction to
entertain proceedings concerning the status of a person provided that
the matter relating to maintenance is ancillary to those proceedings,
unless that jurisdiction is solely based on the nationality of one of the
parties.
c) To determine which court has jurisdiction to the divorce proceedings and

whether this is not solely based on the nationalities of Maria or David,
reference has to be made to the Brussels II bis Regulation:
§ First asses the scopes
Material Scope: Article 1. The scope is limited to civil matters, more

specifically matters relating to divorce; the case deals with divorce, a civil
matter, so the material scope is fulfilled.
Formal (personal/geographical) scope: Officially the FS is arts. 3-7, but

it is rather complicated. The FS is derived from the provisions on
jurisdiction. So if the court applies the article 3 and finds out can accept
jurisdiction, which in most of the cases will be the outcome, than the formal
scope is fulfilled. However, if the court cannot accept jurisdiction on the
basis of article 3, than the formal scope becomes complicated, because the
relationship with the articles 6 and 7 becomes relevant as well. In that case
the formal scope has to be determined by and derived from the articles 3 – 7
+ the case law of the ECJ (Sundelin-Lopez). In this case the spouses are
habitually resident in (different) member states, as Maria is habitually
resident in France (and national of Italy) and David is habitually resident in
Luxembourg (and national of France); so the formal scope is fulfilled
Temporal Scope: See art. 64 in conn. with art. 72: the provisions of this
Regulation shall apply only to legal proceedings instituted after its date of
application, i.e. after 1 March 2005
Therefore the Brussels II bis regulation is applicable to this case since all scopes
have been fulfilled
§ According to article 3 Brussels II bis Regulation the following courts can have
international jurisdiction:
- Article 3 section 1, 1st indent: Inapplicable to our case
- Article 3 section 1, 2nd indent: The court of the last residence of the spouses
insofar as one still resides there: so the court of Luxembourg, as both
spouses used to have their hab. res. there David still lives there; or
- Article 3 section 1, 3rd indent: the court of the habitual residence of the
respondent: so the court of France as Maria, is the respondent in the divorce
proceedings instituted by David ( see case facts) and has her habitual
residence in France; or
- Article 3 section 1, 4th indent: Inapplicable to our case; or
- Article 3 section 1 5th indent: the court of the habitual residence of applicant
if he/she resided there for at least one year immediately before the
application was made: so the court of Luxembourg since David is the
applicant and has resided there more than one year before he filed for a
divorce; or
- Article 3 section 1 6th indent: Inapplicable in our case since David is not a
national of Luxembourg; or
- Article 3 section 1 sub b: the court of the nationality of both spouses:
Inapplicable since no common nationality.
-
According to the Brussels II bis the courts of Luxembourg and France have jurisdiction,
and this is not solely based on the nationality of Maria or David
§ Going back to article 3(c) MR, even though the court of Luxembourg
could have jurisdiction to divorce proceedings, this is most likely to be
reserved to the French court as proceedings have already been started
there ( this in accordance with the Lis pendens doctrine ( article 12
MR).
§ Article 3 (d) MR: not applicable to our facts
d) Conclusion: the courts of Luxembourg and France are competent to hear the
spousal maintenance claim.
Continuation of the case
You are told that the French Court has made an order, which provided for a payment of
maintenance for the children. The judgment of 7 January 2015 awarded - backdated to
October 2014 - €1,200 per month in child maintenance. Since the judgment, David has not
paid anything for the maintenance of his children, pursuant to his obligations under the order.
Question:
c) Maria wishes to enforce the order for child maintenance in Luxembourg. Please
advise whether the order will be recognised and enforced in Luxembourg and
on what basis. (2 pts)
a) Applicability of the Maintenance Regulation (MR). The rules of the
Maintenance Reg. are only applicable, if the material, formal and temporal
scopes of the Reg. have been fulfilled. Assess scopes of applicability as per
1(b) above but note formal scope enhanced by Articles 16 and 17 MR.
b) There are two separate procedures for the recognition and enforcement of
maintenance decisions depending on whether or not a Member State is bound
by the 2007 Hague Protocol. France and Luxembourg are bound by the Hague
Protocol. Where a decision on child maintenance is given in a Member State
bound by the 2007 Hague Protocol (French court order on child maintenance),
it must be recognised in another Member State (Luxembourg) without any
special procedure and without any possibility of opposing its recognition
(Article 17(1). A decision given in a Member State bound by the 2007 Hague
Protocol and enforceable in another Member State without the need for a
declaration of enforceability (Article 17(2)).
c) Conclusion: Based on Article 17 MR, the French order for child maintenance
will be recongised and enforced in Luxembourg
2 Fout! Onbekende naam voor documenteigenschap.

QUESTION 2 (10 pts; corrector: Pauline Kruiniger)
a) Proposition (4,5 pts)

“The ultimate goal of Friedrich Von Savigny is to achieve an international harmony of
decisions by means of the statuta realia and statuta personalia.”
Question:
Explain whether or not this proposition is correct.
Do not forget to explain in your answer the underlined notions in the proposition: the statuta
realia and the statuta personalia, and the international harmony of decisions!
First option: the proposition is not correct.

Von Savigny’s goal is indeed to achieve an international harmony of decisions, but by means
of the multilateral conflict rules.
or:
Second option: the propostion is not correct. That goal cannot be achieved by the Statuta
being unilateral conflict rules, originally created by Bartolus A Sassoferato. Their starting
point is the legal rule itself in order to determine their scope of application by looking at their
wordings (the intention of the legislator).
(One out of these two possibilities + continuation answer as below)
Statuta realia concern objects and they have a geographical application. Statuta personalia
concern persons and they follow the person involved.
Von Savigny created a system of PIL as based on multilateral or attributive conflict rules.
The starting point is the legal relationship that has to be brought ‘home’, to its Seat (Sitz). The
Sitz is the jurisdiction out of all jurisdictions involved with which the closest relationship
exists.
The conflict rule (by means of the connecting factor) attributes the legal relationship, the case
involved, to that specific jurisdiction, more specifically to its legal system that is then the
most closely related legal system.
If all states would apply this system of the closest related legal system by means of the
multilateral conflict rules, an international harmony of decisions would be achieved: all states
would apply the same law and thus have the same decision as a result.
b) Define the following PIL notions: (2 pts)
i. international uniform law = unification of parts of substantive private

law, see e.g. The Vienne Convention on the Sale of Goods.
ii. comity (or: comitas) = courtesy, respect; legal base for the method of the
Statutists: out of comity States mutually respect the validity of foreign law
in their states.
iii. favor divortii = the favouring of obtaining or the recognition of the
divorce.
iv. forum rei (also: actor sequitur forum rei) : the court of the place where the
defendant is domiciled or has habitual residence (,has international
jurisdiction).

c) Renvoi (3,5 pts)
Question:
i) Explain the notion of renvoi. (1pt)
Renvoi has to be understood as the reference of foreign conflict rules either back to the law of
the forum (remission) or to the law of a third state (transmission).
The foreign conflict rules apply because a conflict rule of the forum refers to them as
applicable law since the forum accepts renvoi.
(If the forum does not accept renvoi, its conflict rule only refers to the substantive part of the
foreign law as applicable law).
Case
Max Pile, a national of country A, has lived most of his life in country B. Upon his death his
wife initiates proceedings before the national court of country B seeking to inherit Max Pile’s
assets which at the time of his death are in country B.
The PIL of country A states:

1. Where the goods of the deceased are located in another country, the law of that
country shall apply to the succession
The PIL of country B states:

1. The law that applies to the succession shall be the law of the country whose
nationality the deceased held at the time of his/her death.
Question:
ii) Which law will the court apply to the inheritance claim? (2,5 pts)
- The court of country B will determine that the law of country A is applicable - the
law of the nationality of the deceased.
- Since country B accepts renvoi it will make a total reference to the law of country
A, comprising the PIL of country A.
- The PIL law of country A refers back to the law of country B being the law of the
country where the goods are situated as the applicable law.
- However, because country A excludes renvoi it means that the law of country A
refers only to the substantive law of country B as the applicable law, excluding the
PIL of country B.
- Hence the court will apply the substantive law of country B.

QUESTION 3 (10 pts; corrector Dr. S. Rammeloo)
Case
Nearby Visegrad, a city in the North of Magyarorsag (Hungary) a fish trading firm exploits
the natural resources of the river Danube (Donau). Fishing records over the past months show
a decline in natural yields (fish). Research of water samples demonstrates that the water is
polluted. Upstream the river Danube a company in the South of the Czech Republic has
dumped industrial waste in the river Danube.
Today, the fish trading firm seeks your advice with a view to instituting proceedings.
Questions:
a) ‘To the court of which legal order can we turn for indemnification claims?’ (5,5
pts)
EU Reg. 1215/2012 (‘Recast Brussels I’) applicable?

Yes, see substantive (art. 1)/formal (art. 4-6) /temporal scope (art. 66)
Plaintiff may opt for:

- Art. 4 jo. 63 (main rule): court of country where defendant resides (Czech Rep)
or
- Art. 7.2: ‘place where the harmful event occurs’. This may include, notably for
environmental damages, the court where either the event giving rise to damage occurred
(Handlungsort = Czechia as well)
or where the (direct) damage showed (Erfolgsort = Hungary)
in particular with a view to environmental damages (CJEU Bier – Mines d’Alsace)
b) ‘Will the competent court apply the law of the Czech Republic?’ (4,5 pts)
EU Reg. 864/2007 Rome II applicable?

Yes, see substantive (art. 1)/formal (art. 3)/temporal scope (art. 32)
Pursuant to article 7 the plaintiff has two options:

- Main rule of art. 4 (lex loci damni – law of the country
where (direct) damage occurs here: Hungary) applicable,
unless
- Person seeking compensation for damages prefers the law of country
in which the event giving rise to damage occurred
(Handlungsort: here Czech Rep).
[Cf., inter alia, Power Point slide general lecture Rome II (slide no. 21)]
Course
Examinaton
Academic year Date Time Duration Phase

2017/2018 1 February 2018 13:00 to 16:00 3 hours BACHELOR
Examination requirement
Number of 3
questions:
Requirement: All questions must be answered.
You must answer each question, this means including (possible) sub
questions, on a separate examination sheet.
Point A total of 30 points may be obtained. The final mark will be calculated by dividing
Distribution: the points obtained by 3 and rounding this off to a whole number in the usual
manner.
The following may be used during the examination
- Legislation. Non-annotated editions of legislation (that is, without any commentary or case law).
- Dictionaries. Bilingual from and into English or Dutch, non-explanatory, non-legal dictionaries.
- Maastricht Collection (4th edition or 5th edition), K. Boele-Woelki and R. ter Rele, Ars Aequi,
wetseditie Internationaal Privaatrecht.
- No text (for example, writing/drawings) may be added to the legislative volumes and other materials
that have been brought by students themselves, including tab sheets that are used by students in
the materials including the legislative volumes. Sentences or parts of sentences in the legislative
volumes and in the other materials may only be underlined or highlighted.
Answer instructions
- Provide support for your answers and always mention the relevant case law and articles in
legislation or treaties.
Do not refer to your answers to other questions.
- Do not make the answers longer than necessary.
Needless digressions will result in a lower score.
- Answers must always be written with a pen, not a pencil. You may not use Tipp-Ex or other
correction fluid.
- The answers to questions and the text of assignments must be written in clearly legible, proper
English. Illegible or ambiguous passages and incomprehensible text will not be considered
Announcement of result
- The examination result will be announced within four weeks of the date on which the examination
was taken (Bachelor’s Programmes: Article 27 (1) Education and Examination Regulations;
Master’s Programmes: article 45 (1) EER)
Good luck!
1
Procedural rules
Maastricht University’s Rules of Procedure for examinations apply to this examination.
If you violate the procedural rules, you may be formally reprimanded by the Board of Examiners
and your examination may be declared invalid. You may be excluded from (further) participation in
one or more examinations relating to a particular course of study for a period not exceeding one
year.
Before you start

• Please place your student ID and any permissible material that you need during the
examination on the table.
• Unless otherwise indicated on the cover sheet, all electronic equipment (such as mobile
phones) must be switched off and stored in the bag under the table before the start of the
examination. The use of any electronic equipment (such as a clock or a calculator on a mobile
phone) during the examination is strictly prohibited. You may only remove your equipment
from the bag after you have left the examination room.
• Any watches must be removed and stored in the bag under the table before the start of the
examination. You may only remove your watch from the bag after you have left the
examination room.
• Before starting the examination, please complete, in a clearly legible manner, all of the
information at the top of each examination sheet.
• You must answer each question on a separate examination sheet.
During the exam

• You may not leave the examination hall for the first thirty minutes after the start of the
examination.
• Contact with other students during the examination is not permitted in any form whatsoever
• If you have a question, please raise your hand. One of the invigilators will come to address
your query.
• Always follow the invigilators’ instructions.
• You may not stand up and walk through or leave the examination hall during the examination
without the permission of an invigilator.
You need to go to the toilet

• Raise your hand and wait for the invigilator. You will obtain a toilet pass from an invigilator,
after handing over your UM card (as proof of your identity).
• Toilet visits will be limited. You may go to the toilet three times during an examination period
of three hours or longer.
• No toilet visits are permitted during the first and last 30 minutes of the examination.
You are finished with the examination

examination.
• Check whether all information has been filled in at the top of each examination sheet. You must
sign, in the designated boxes, all the examination sheets to be turned in.
• Please raise your hand. One of the invigilators will come to take the examination sheets from
you.
• Please remain seated until the invigilator has taken the examination sheets from you and count
the number of sheets turned in.
• You must then leave the examination hall and building quietly .
SUGGESTED ANSWER MODEL
NB: this model answer is meant to provide for an indication of the

correct answer. It does not exclude that other alternatives that
are not explicitly mentioned below, can be correct as well.
Case
On the 7 January 2017 Rita, domiciled in Germany, placed her famous antique vase for a special
delivery to The Antwerp Museum (Belgium) where it was supposed to be displayed. Unfortunately,
on its passage, the courier lost the vase when a catastrophic accident occurred on the highway in
the Netherlands.
In April 2017, the treasure hunter, Peter (Dutch resident) found the vase in a meadow close to the
highway. Recognising that it was probably of high value, he filed a lost items rapport on 27 April
2017 and decided to safely keep it in his vitrine at home (in the Netherlands), while waiting for the
owner to claim it.
In October 2017, Cyril (Belgian national) goes to visit his best friend Peter in the Netherlands. As a
fanatic collector Cyril immediately recognises the vase and is eager to purchase it. Both friends
decide on a price of 1000 Euro. The day after, Cyril takes the vase back to his own museum; the
‘Museum of Treasures’ in Leuven (Belgium).
On 1 January 2018, Rita sees her vase on a pamphlet of the Museum of Treasures. Determined to
claim it back she seeks for your advice on what her possibilities are to start proceedings before a
German court.
Additional information:
- The vase is not a cultural object.
- The transportation of the vase does not constitute an international carriage of goods.
- The United Nations Convention on Contracts for the International Sale of Goods (CISG) is
excluded.
N.B. Please support your answers with relevant case law and your legal basis. Germany,
the Netherlands and Belgium are Member States bound by all relevant EU private
international law instruments.
a) Can the German court have international jurisdiction and otherwise which
court(s) will have international jurisdiction? (6 points)
• Characterisation of claim - Rita wants to reclaim her lost vase from Cyril, which in
legal terms makes this a case of revindication on the basis of ownership of a lost
item. There is an EU instrument, Brussels I Recast that regulates jurisdiction in
commercial and civil matters.
• The applicability of this regulation to the facts of the case will first have to be
determined.
o Formal Scope: Germany is a Member State bound by Brussels I Recast.

Article 1 (1) specifies that it governs civil matters. Revindication qualifies as a
civil matter and is not an excluded matter in Article 1(2)
o Material scope: Articles 4-6 jo. 62 requires a defendant, in this case Cyril, to
be resident in a Member State. Article 62 provides that the connecting factor
of domicile is to be determined by internal law, in this case Belgian law. From
the facts of the case there is no indication that Cyril is domiciled elsewhere
and it can be presumed that his domicile is in Belgium since that is where he
also has his museum.
o Temporal Scope: Article 66 jo. Article. 81: The regulation is applicable to
procedures instituted on or after 10 January 2015 and after its entry into force
which is on the same date. Rita saw the vase in January 2018; she will
institute proceedings after that date. The temporal scope is met.
Conclusion: All scopes are met and Brussels 1 Recast is applicable in

principle to the case.
• Checklist - The case does not concern a matter of exclusive jurisdiction (Art. 24.) and
the facts of the case does not fall within the sections 3, 4, 5 as it does not concern an
insurance, labour or consumer contract. Similarly, the facts of the cases do not
indicate that the parties have agreed upon a choice of forum (Art. 25). Rita has not
started proceedings in any court thus, tacit prorogation has not (yet) taken place (Art.
26). Article 7 is equally not applicable as there is no special jurisdiction for matters of
revindication. Therefore the general rule (Art. 4) is applicable.
• Article 4 jo. 62. Provides the court of where the defendant is domiciled with
jurisdiction. Article 62 provides that the connecting factor of domicile is to be
determined by internal law, in this case Belgian law. According to the facts of the
case it may be presumed that Cyril is domiciled in Belgium. Conclusion: Belgian court
has jurisdiction (forum rei).
b) If a foreign court in the European Union would render a judgment on this

issue, will that judgment be recognised in another country of the European
Union? (4 points)
• Question of recognition. The applicability of Brussels I Recast to the facts of the case
will have to be determined
o Material scope – see above

o Temporal scope – see above
o Formal scope - Art. 36 Brussels I Recast Reg: judgment given in a MS.
• Yes, see Art. 36 Brussels I Recast (without any special procedure being required, so
automatic recognition).
• Subject to Art. 45 (no ground for refusal based on e.g. invoking the public policy
exception). See also Art. 45 for other grounds of refusal of recognition, Art. 52 that
prohibits review as to the substance of a judgment, etc.. Nothing to suggest on the
facts of the case that the judgment would not be recognised.
a) Explain the following PIL notions. Please give an example of what these notions
mean and/or provide an example from EU PIL instruments studied throughout
the course:
i) forum prorogatum (1 pt)
Prorogated jurisdiction – jurisdiction chosen by consent by the parties. Eg. Art. 25 Brussels I
Recast
ii) lis pendens (1 pt)
Proceedings on the same facts by the same parties cannot be commenced in a second court if the
lis i.e. action, is already pendens, i.e. pending, in another court. Lis pendens arises from
international comity and it permits a court to refuse to exercise jurisdiction when there is parallel
litigation pending in another jurisdiction. E.g. Art 19 Brussels II Bis
iii) renvoi (2pts)
Where a matter before a court has an international element, the court will initially apply the PIL
rules of the jurisdiction in which it is located (A) to decide which law applies. If A's law is the
applicable law, the court will apply A's domestic law. However, if the applicable law is that of
another jurisdiction (B), the court must decide whether to apply B's domestic law or B's law
including B's own PIL rules. If the court decides on the latter and B's PIL rules refer back to the law
of A, or refer to the law of a third jurisdiction, this referral is known as renvoi ("sending back" in
French). E.g. Art. 12, exclusion of renvoi, 2007 Hague Protocol on law applicable to maintenance
b) Proposition (3 points):
“The use of uniform conflict rules guarantees the international harmony of

decisions.”
Explain whether and why this proposition is correct or incorrect. Do not forget
to explain the terms that are underlined in the proposition, in your answer.
• Explain proposition:
o It was Von Savigny’s ideal to achieve an international harmony of decisions by
means of his theory of proximity through multilateral conflict rules. The starting
point in his theory of proximity is the legal relationship itself that has to be ‘brought
home’, to its seat (sitz). The sitz is the legislative jurisdiction, and thus its legal
system, to which the legal relationship belongs according to its particular nature. It
is the conflict rule by means of the connecting factor that attributes the legal
relationship involved to that legal system being the closest related legal system.
o If all states apply this theory of proximity, an international harmony of decisions

should be achieved in the idealistic view of Von Savigny. A harmony of decisions is
the situation that irrespective of which court has international jurisdiction, the
same law will be applied in a case thus resulting in the same decision in the end.
o But each state makes its own multilateral conflict rules while maybe choosing
different connecting factors implying that states may apply different multilateral
conflict rules and connecting factors in similar cases resulting in different applicable
laws and thus in different substantive outcomes. However, when states use
multilateral conflict rules that have been unified, uniform conflict rules, their courts
will all apply the same law in a case resulting in the same substantive outcome in
the end and thus may achieve an international harmony of decisions.
o However, despite the use of such uniform conflict rules, an international harmony
of decisions can still be hampered because of the possibility of states to invoke the
public policy exception, to apply their overriding mandatory rules, and because of
the differences in renvoi-policy among states etc.
o Conclusion: Hence, the proposition is partly correct (or incorrect): the use of
uniform conflict rules results in international harmony of decisions as long as
aspects such as the public policy exception, overriding mandatory provisions, the
differences in renvoi-policy among states do not interfere.
c) Explain the problem of conflict mobile (or conflit mobile) in respect of movable
goods and goods in transit and include the solutions thereto. (3 points)
• Conflit mobile refers to the situation where there is a change in the circumstances
underlying a variable connecting factor (e.g. lex rei sitae, nationality, and domicile). This
has the consequences that two or more legal systems are competing to govern the legal
relationship.
• The commonly applied solution to movable goods is that of the latest crystallizations of the
connecting factor i.e the lex rei sitae. Thus the law of the place where acquisition or loss in
rights in rem occurred continues to govern the good even if the good is moved to another
country. Where a new crystallization occurs in the other country, then that law applies from
then on.
• In case of goods in transit the issue of conflit mobile can be solved by applying a more
specific connecting factor. This can then be the lex loci destionis (the law of the place of
destination) or the lex expeditionis (the law of the place of dispatch).
a) Case: Maria and Ian (4 points)
Maria and Ian married ten years ago. Their marriage was validly celebrated in accordance
with the law of EU-member State X where the marriage took place. Last month, their
marriage was dissolved by divorce. Now Ian claims for maintenance in a national court of
another EU-Member state (State Y) where they lived together. It was Ian who gave up his
job to take care of the household and their adoptive children during and following the
relationship.
i) Argue from a PIL perspective whether and why recognition of the validity
of the previous marriage between Ian and Maria in State Y can be a
prerequisite in order to possibly claim for maintenance. (2 pts)
• Answer: validity of marriage can come up as preliminary question to main question

about spousal maintenance. Maintenance obligations can inter alia arise from a
marriage. Therefore, a valid marriage between Maria and Ian is a prerequisite in order
to enable Ian claim maintenance from Maria arising from their marriage.
ii) Describe the two possible PIL approaches of the court of State Y with
regard to the issue of the validity of the marriage in respect of a
maintenance claim (2 pts)
• Incidental question regarding the validity of the marriage will be answered

o either to the PIL-rules of the forum, lex fori (independent approach; furthers
internal harmony of decisions as judges within one state will take similar decisions
regarding a specific issue irrespective of the context), or
o the lex causae of the main question (being the divorce) (dependent approach;
furthers international harmony of decisions because the result will be the same
irrespective of the court)
b) Case: Guillaume and Maria (6 points)
The French national Guillaume and the Romanian national Maria, both Erasmus
students, met each other during the course on International Business Administration at
Maastricht University, the Netherlands in 2014. They marry in 2015 and settle in
Maastricht, where they want to spend the rest of their studies and their married life
together. They enter into an agreement and record in an email, which they send to
each other, that in the event of separation they agree to get divorced only in the
Netherlands and that Dutch law would apply in the event of any divorce.
In early 2017, Guillaume met an old girlfriend, Vanessa. He moves back to Paris, France
in February 2017 and leaves Maria, totally devastated, behind. Guillaume moves in with
Vanessa and finds full-time work in Paris as a court clerk. She returns to her native
Romania in March 2017. Maria moves in with her parents initially and then, a few
months later, moves into a studio apartment and finishes the bar exam to become a lawyer
in Romania. Guillaume issues proceedings to divorce Maria on 1 October 2017 in
the French court. Maria, realising that her marriage was finally over, accepted the divorce
papers, responds to the French court acknowledging the proceedings; Maria wants to move
forward with her life.
You are a law clerk to the French judge who is considering the divorce application. You
are asked to advise on which law will be applicable to the divorce. (6 points) Please
support your answer by providing the legal basis. N.B. France is a Member State bound
by all relevant EU private international family law instruments.
• In order to find out which law will be applied by the competent court, e.g. by the court of
France (Maria does not challenge/contest the divorce jurisdiction), the clerk needs to
assess whether there are uniform applicable law rules on divorce.
• In this case Council Regulation (EU) No 1259/2010 of 20 December 2010 or the Rome III
Regulation is applicable if the scopes of this instrument are fulfilled. Furthermore, it is
relevant that the Regulation is only in force in the participating MSs as it has been
established on the basis of enhanced cooperation pursuant to Arts. 326-334 TFEU.
• Assess applicability of the Rome III Regulation
o Material Scope: See Art. 1: divorce and legal separation situations involving a
conflict of laws; the case deals with a divorce situation, so the material scope is
fulfilled;
o Formal (personal/geographical) scope: France is a MS bound by the Rome III
instrument. See Art. 4: universal application; the instrument applies to
everybody/everywhere, so the formal scope is fulfilled;
o Temporal Scope: Art. 18 in conn. with Art. 21, the provisions of this Regulation
shall apply only to legal proceedings instituted as from 21 June 2012.
Conclusion: all scopes have been fulfilled; Rome III is applicable in this case.
• Which law will be applied by the competent court? Apply Rome III Reg.
• Query whether there are indications for a valid choice of law made pursuant to Art. 5
Rome III Reg: a valid agreement between the spouses.
• Students could argue for or against the choice of law being formally valid.
o If students conclude choice of law is valid: Art. 5 sections 1, 2 and 3 and Art. 7
section 1 the (restricted) choice of law has to be made by both spouses (expressed
in writing, dated and signed by both spouses), in principle at the latest at the time
the court is seised and in accordance with Art. 6 and Art.7. More importantly, the
spouses are only allowed to make a restricted choice of law pursuant to Article 5(1)
Rome III. On the basis of Art. 5 (1)(a) both spouses can make a choice for Dutch
law (renvoi excluded), as this is the law of the law of the State where the spouses
are habitually resident at the time the agreement is concluded
OR
o If student concludes choice of law not formally valid, apply Art. 8. Hierarchy in
connecting factors for the applicable law rule. On facts Art. 8(d) is applicable.
Conclusion: French law.

Course
Examinaton

2017/2018 To be announced on To be announced 3 hours BACHELOR
March 19 on March 19
Examination requirement
Number of 3
questions:
Requirement: All questions must be answered.
You must answer each question, this means including (possible)
sub questions, on a separate examination sheet.
Point A total of 30 points may be obtained. The final mark will be calculated by dividing
Distribution: the points obtained by 3 and rounding this off to a whole number in the usual
manner.
The following may be used during the examination
- Legislation. Non-annotated editions of legislation (that is, without any commentary or case law).
- Dictionaries. Bilingual from and into English or Dutch, non-explanatory, non-legal dictionaries.
- Maastricht Collection (4th edition or 5th edition), K. Boele-Woelki and R. ter Rele, Ars Aequi,
wetseditie Internationaal Privaatrecht.
- No text (for example, writing/drawings) may be added to the legislative volumes and other materials
that have been brought by students themselves, including tab sheets that are used by students in
the materials including the legislative volumes. Sentences or parts of sentences in the legislative
volumes and in the other materials may only be underlined or highlighted.
Answer instructions
- Provide support for your answers and always mention the relevant case law and articles in
legislation or treaties.
Do not refer to your answers to other questions.
- Do not make the answers longer than necessary.
Needless digressions will result in a lower score.
- Answers must always be written with a pen, not a pencil. You may not use Tipp-Ex or other
correction fluid.
- The answers to questions and the text of assignments must be written in clearly legible, proper
English. Illegible or ambiguous passages and incomprehensible text will not be considered
Announcement of result
The examination result will be announced within four weeks of the date on which the examination was
taken (Bachelor’s Programmes: Article 27 (1) Education and Examination Regulations; Master’s
Programmes: article 45 (1) EER)
Good luck!
Procedural rules
Maastricht University’s Rules of Procedure for examinations apply to this examination.
If you violate the procedural rules, you may be formally reprimanded by the Board of Examiners
and your examination may be declared invalid. You may be excluded from (further) participation in
one or more examinations relating to a particular course of study for a period not exceeding one
year.
Before you start

• Please place your student ID and any permissible material that you need during the
examination on the table.
• Unless otherwise indicated on the cover sheet, all electronic equipment (such as mobile
phones) must be switched off and stored in the bag under the table before the start of the
examination. The use of any electronic equipment (such as a clock or a calculator on a mobile
phone) during the examination is strictly prohibited. You may only remove your equipment
from the bag after you have left the examination room.
• Any watches must be removed and stored in the bag under the table before the start of the
examination. You may only remove your watch from the bag after you have left the
examination room.
• Before starting the examination, please complete, in a clearly legible manner, all of the
information at the top of each examination sheet.
• You must answer each question on a separate examination sheet.
During the exam

examination.
• Contact with other students during the examination is not permitted in any form whatsoever
• If you have a question, please raise your hand. One of the invigilators will come to address
your query.
• Always follow the invigilators’ instructions.
• You may not stand up and walk through or leave the examination hall during the examination
without the permission of an invigilator.
You need to go to the toilet

• Raise your hand and wait for the invigilator. You will obtain a toilet pass from an invigilator,
after handing over your UM card (as proof of your identity).
• Toilet visits will be limited. You may go to the toilet three times during an examination period
of three hours or longer.
• No toilet visits are permitted during the first and last 30 minutes of the examination.
You are finished with the examination

examination.
• Check whether all information has been filled in at the top of each examination sheet. You must
sign, in the designated boxes, all the examination sheets to be turned in.
• Please raise your hand. One of the invigilators will come to take the examination sheets from
you.
• Please remain seated until the invigilator has taken the examination sheets from you and count
the number of sheets turned in.
• You must then leave the examination hall and building quietly .
QUESTION 1 MOHAMMED AND ANA (10 POINTS)
Mohammed (who has Moroccan and Dutch nationality) lives in Fez (Morocco). He is happily married
to his wife Nadia (who has Moroccan nationality). However, since it is allowed according to
Moroccan law to marry up to four women, Mohammed decides to marry two other women: Halina
(who has Moroccan nationality) and Ana (who has Dutch and Belgian nationality). Ana convinces
Mohammed and the other two women to move to the Netherlands with her. She assures him that
their polygamous marriage will be recognised in The Netherlands.
Ana is a friend of your family and tells you about her plans. You are a hardworking student at
Maastricht University who just finished a course in Private International Law. During the course you
were told that public policy could lead to trouble in polygamous paradise.
a. Explain the meaning of public policy and its two dimensions. (3 points)
• Explanation PIL public policy/ordre public: 1. is used to limit the influence of foreign law on
the core and kernel of fundamental values and norms of a legal order; 2. can justify
restrictions of fundamental freedoms. Public policy exception
o Degree of involvement and connection with the legal order of the forum
(Inlandsbeziehung)
o Different approaches between States
o Changeable in time
• Credit would also be given if students considered international public policy:

International/PIL public policy/ordre public on a European level: limits the applicability of
national concepts of public policy/ordre public in the interest of a uniform judicial area; in
such an area there should be unrestricted recognition.
• Negative dimension public policy

o Violation of fundamental principles of the lex fori
o “Invoked in case of:
▪ unacceptable applicable foreign law
▪ recognition of unacceptable foreign decisions
• Positive dimension public policy

o Principles so important that they have to be applied, irrespective the otherwise
applicable law → special mandatory rules
CONTINUATION OF FACTS
Due to unexpected circumstances and ongoing objections to the marriage of her mother, Ana
decides to end the marriage. She and Mohammed divorce and she finishes her studies in Arabic
culture and languages in The Netherlands.
During her studies, Ana falls head over heels in love with Gökhan, a German national. They decide to
live together in Germany and they marry on 10 October 2010, only a few months after Ana moved in
with Gökhan. Two years later Ana is pregnant with twins who are born on 16 of July 2012. However,
a few years later their lives change drastically when Mohammed appears at their house in Germany.
Mohammed has divorced each of his wives and is living and working in The Netherlands. Mohammed
asks Ana to move in with him in The Netherlands. It appears that Ana never stopped keeping in touch
with Mohammed and it only takes a few seconds for her to say ‘yes’. Ana moves in with Mohammed
on 26 May 2017 leaving her husband and children behind.
After consulting several psychologists, Gökhan is finally able to look on the bright side of life again.
But, first things first: he is not yet divorced from Ana.
You own a successful law firm and Gökhan asks you for advice concerning his divorce. He wants to
know whether he can file a divorce before the German court.
NB: the EU Member States identified in the fact pattern are bound by all relevant EU and
international family law instruments.
b. Advise Gökhan whether the German court and/or any other European court is competent
to hear the divorce? (4 points)
Apply Brussels IIbis
Scopes
MS art. 1: civil matter (divorce) = fulfilled
FS art. 3-7 (+case law Sundelind/Lopez): sufficient if students come up with art. 3, they both reside in
a MS = fulfilled
TS art. 64 jo. Art. 72: legal proceedings instituted after 1 March 2005= fulfilled
Application
Art. 3 provides alternative grounds for international jurisdiction (based on favour divortii principle).
The grounds are alternative, there is no hierarchy (Hadadi).
Gökhan is the applicant, he takes the initiative to divorce, and Ana is the respondent.
According to Art. 3 the following courts have international jurisdiction:

• Article 3 section 1, 2nd indent: The court of the last residence of the spouses insofar as one
still resides there: so the court of Germany, as both spouses used to have their hab. res. in
Germany and Gökhan still lives there; or
• Article 3 section 1, 3rd indent: the court of the habitual residence of the respondent: so the
court of The Netherlands as Ana, the respondent, has her habitual residence in The
Netherlands; or
• Article 3 section 1 6th indent: the court of the habitual residence of applicant if he/she
resided there for at least six months immediately before the application and if he/she has
the nationality of the Member State of habitual residence; so the court of Germany as
Gökhan has his habitual residence there for more than six months and is national of
Germany.
Conclusion
So, the courts of Germany and The Netherlands have international jurisdiction for the divorce and
the court first seised with have jurisdiction (Art. 19 and Art 16).
c. Assume that Gökhan does commence divorce proceedings before the German court. Which
law will be applied to the divorce by the German judge? (3 points)
Apply Rome III Reg.

In order to find the applicable law, one has to find and check the relevant instrument. In this case
Council Regulation (EU) No 1259/2010 of 20 December 2010 or Rome III Reg. may be applicable if
the scopes of this instrument are fulfilled. Furthermore it is relevant that the Regulation is as from 21
June 2012 only in force in the originally participating MS.
Scopes
MS art. 1: divorce and legal separation = fulfilled
FS art. 4: universal scope = fulfilled (German court is bound by Rome III)
TS art. 18 jo. 21: as of 21 June 2012 = fulfilled
Application
As the case provides no information related to a choice of law, the applicable law can be found in Art.
8 (subsidiary connecting factor). Hierarchy in connecting factors for the applicable law rule.
a. where the spouses are habitually resident at the time the court is seized
b. where the spouses were last habitually resident, provided that the period of residence did not
end more than 1 year before the court was seized, in so far as one of spouses still resides in that
State at the time the court is seized; or, failing that
c. of which both spouses are nationals at the time the court is seized; or, failing that
d. where the court is seised.
Conclusion
According Art. 8(b) German law is applicable.
QUESTION 2 PRIVATE INTERNATIONAL LAW NOTIONS (10 points)
a) Explain following private international law notions:
i) actor sequitur forum rei (1 point)
the plaintiff follows the court of the defendant (proceedings in the court of the
defendant)
ii) forum non conveniens (1 point)
court that would have jurisdiction according to general rules is free under the
particular circumstances of a case to decide to decline jurisdiction, or at least to
order a stay if foreign court appears to be the more appropriate court
iii) dépeçage (1 point)
parties can subject different parts of their contract to different legal systems: they
can achieve such splitting by choosing different legal systems for different parts of
the contract or by limiting their choice of applicable law to a part only of the
contract
b) Explain the three different possible approaches towards classification /

characterization of a legal issue for the purposes of identifying the scope of a
particular conflict rule. (3 points)
- lex fori approach (independent approach): classification/characterisation of the concrete

international case according to the system of notions of the legal (conflict) rules of the
forum
- lex causae approach (dependent approach): classification/characterisation of the concrete
international case according to the system of notions of the lex causae, the law that is
applicable to the case according to the conflict rule
- autonomous/legal comparative approach: classification/characterization of the concrete
international case on the basis of legal comparative research
c) Inheritance Claim (4 points)
Max Pile, a national of country A, has lived most of his life in country B. Upon his death his wife
initiates proceedings before the national court of country B seeking to inherit Max Pile’s assets which
at the time of his death are in country B.
The private international law of succession of country A states:

1. Where the goods of the deceased are located in another country, the law of that country
shall apply to the succession
The private international law of succession of country B states:

1. The law that applies to the succession shall be the law of the country whose nationality the
deceased held at the time of his/her death.
Question: Which law will the court of country B apply to the inheritance claim? (4 points)
- The court of country B will determine that the law of country A is applicable - the law of
the nationality of the deceased.
- Since country B accepts renvoi it will make a total reference to the law of country A,
comprising the PIL of country A.
- The PIL law of country A, however, refers back to the law of country B being the law of
the country where the goods are situated as the applicable law.
- However, because country A excludes renvoi it means that the law of country A refers
only to the substantive law of country B as the applicable law, excluding the PIL of
country B.
- Hence the court will apply the substantive law of country B.
FRAdex a French courier company specialises in providing shipment services along the Rhine River.
On the night of 15 April 2017 the fully tanked ship, RMS Deities, departs from France and heads to
Austria to pick up some packages.
While distracted by a television broadcast on the newest discoveries on the Titanic, the captain, Eddy
Smith (employer of FRAdex), accidently rams the ship against the river bank’s walls. The collision
creates a considerable hole in the vessel, which subsequently causes the ship to sink rapidly. The
captain manages to use a safety boat to reach safety in France. The ship cook, Jack Dwayneson (a
Belgian national), however, is less fortunate and drowns in France leaving behind his son and wife,
both of whom are financially dependent on him. In addition, the gasoline from the vessel’s tank
pollutes the water and is taken northward with the current where it severely damages the cultivation
of several farms, nearing The Rhine river in France and Germany.
Still distressed over the loss of her husband, Jack’s wife asks you for advice. She wants to know if and
where she can demand for compensation. She indicates her preference to start proceedings in a
Belgian court and apply Belgian law in the proceedings as this is closer to home.
NB: the EU Member States identified in the fact pattern are bound by all relevant EU instruments.
a) Will the Belgian or any court(s) have jurisdiction with respect to her claim? Please indicate in
your answer her category as victim, and the types of damages involved, and motivate your
answer. (6 points)
• RMS Deities1 is the liable party and the defendant. Jack is the primary victim while his wife
and son are the secondary victims. This case concerns a tort claim. The death of Jack
qualifies as initial damage - indirect damage. Thus the wife’s claims are for indirect
damages.
• In addition, Handelskwekerij Bier v Mines de Potasse d’Alsace provides that in the case of
damages arising from an instance of water pollution, there may existing multiple significant
connecting factors from the point of view of jurisdiction. Either of connecting factor can be
applied provided that there is a casual connexion between the damage and the event in
which that damage originates. Just as in the case, the damage to the cultivation suffered by
the farmers, qualifies as damage for the purpose of establishing jurisdiction. There is a
causal connexion since the leakage of gasoline in the water (and presumably their
dependency on drainage of the water from the river for spraying their corps) will inevitably
result in the diminution of their crops.
Jurisdiction: Brussels 1 Recast
- Material scope: Article 1 (1) the regulation deals with claims for compensation from
contractual and non-contractual matters. The recent case concerns compensation arising
1
Other possible answer. The captain is the tort feasor and defendant
from a non-contractual matter i.e. tort. The wife wants to claim compensation for both
the pecuniary and non-pecuniary damages she has suffered as result of the death of her
husband. Therefore this scope is met.
- Formal scope: Article 4-6 jo. Article 63 requires that the defendant is domiciled in a MS.
As RMS Deities is the defendant and it presumably has its seat or central administration in
France, which is a MS, the formal scope is fulfilled.
- Temporal Scope: Article 66 jo. Article. 81: The regulation is applicable to procedures
instituted on or after 10 January 2015. The accident occurred in April 2015; henceforth
the wife’s case will be instituted after that date. The temporal scope is met.
Conclusion: all scopes are met and Brussels 1 Recast can be applied.
The case does not concern with a matter of exclusive jurisdiction nor do the facts of the case
indicate the parties have agreed upon a choice of forum (Article 24). Similarly, the case does
not fall within the sections 3, 4, 5 as it does not concern an insurance, labour or consumer
contract.
Special Jurisdiction Article 7 (2) grants jurisdiction to the courts of the place where the
harmful event occurred or may occur.
- The place where the harmful event occurred according to case law, Handelskwekerij Bier
v Mines de Potasse d’Alsace, can be the Handlungsort (place of the event giving rise to
the tort) as well as the Erfolgsort (place where the damage occurred)
- With regards to the Erfolgsort in Dumez v. Helaba and Marinari v Llyods have limited this
to be place where the direct victim suffered initial damage. Thus the wife can go to any of
the courts where the direct victims suffered direct damages.
- Therefore, presuming that the accident happened on French territory the Handlungsort
and Erfolgsort for Jack, the direct victim who suffered initial damage will be the same and
the French court will have jurisdiction. In addition the Handlungsort and Erfolgsort might
differ for the farmers and would thus lead to the French and German courts (as
Erfolgsort) and again French courts (as Handlungsort)
Alternatively, Article 4 jo. 63. Article 63 provides the court of where the defendant (RMS
Deitis) 2 is domiciled. According to Article 63 it may be presumed that the company has its
seat or central administration there. Thus the French court has jurisdiction.
Therefore her claim has to be brought in either of these i.e. the French or German court. She
cannot bring a claim before the Belgian court as it has no jurisdiction.
However, she can always try to reach an agreement with the defendant in accordance with
Article 25. Possibly she might also want to consider starting proceedings in Belgium and
hope that the defendant will show up in the Belgian court which can then qualify as tacit
prorogation in accordance with Article 26.
2
See supra note 1
b) Will the competent court apply Belgian or another law? Please motivate your answer. (4
points)
Rome II Regulation
- Material scope: Art. 1-2 Rome II the regulation applies to civil matters arising from non-
contractual obligations. The case deals with a claim for compensation arising from a tort
and the case not excluded in Article 1(2). Therefore the material scope is met
- Formal scope: Art. 3 Rome II provides for a universal jurisdiction. Thus the formal scope is
met as well.
- Temporal scope: Art. 31 jo. Art. 32: The regulation is applicable to events giving rise to
damage after its entry into force. The regulation entered into force on 11 January 2009.
The accident happened in 2015; hence the temporal scope is equally met.
Conclusion: The Rome II Regulation is applicable to the case.
No choice of law has been made. Parties may nevertheless attempt to reach an agreement in
accordance with Article 14 (1) sub a, after the accident occurred. The Articles 5-12 are not
- General conflict rule Article 4 (1) designates the lex loci damni i.e. the law of the place
where the initial damage occurred. Since she is claiming compensation for the
consequential damages arising from the loss of her husband it can be concluded that the
relevant place is the place where Jack died, as this is the place where the direct damage
occurred. There for French law will be applied as Jack presumably died in France.3
- Article 4(2) excludes the application or Article 4 (1), however this is inapplicable since the
person sustaining damage (Jack) and defendant (RMS Deities) do not have their habitual
residence in the same country, France. Since the case provides that Jack’s family
members, who are dependent on him, reside in Belgium it may be presumed that Jack
too had his domicile there. 4
- Finally, Article 4(3) may exclude both the application of the paragraphs 1 and 2, where
the tort is manifestly more closely connected to another country than the one indicated
in the paragraph 1 and 2. It can hardly be argued that Belgium is more closely connected
to the tort than the country in which Jack died i.e. additionally, other than the fact that
consequential damages materialized in Belgium are no factors that support the claim the
Belgium is more closely connected to the case nor is there any pre-existing relationship
that involves Belgium.
The competent court (French or German court) will apply French substantive law (Article 24)
for all the damages. This court must also take into account the super mandatory rules of the
3
Other possible answers are German law, Austrian law and the law of the place where the ship hit the river bank retaining
wall provided that this is well accompanied with sufficient argumentation
4
Also acceptable is the answer that Article 4(2) is applicable provided that is well argued that Jack has his habitual residence
in France.
lex fori and lex causae (Article 16) as well as the rules of safety and conduct of the place
where the shipwreck occurred ( Article 17). There is no reason to presume that the public
policy exception can be invoked so as to prevent the application of the designated law.

Course
Examinaton

2018/2019 1 FEBRUARY 2019 9:00-12:00 H 3 hours BACHELOR
SUGGESTED ANSWER MODEL

answer. It does not exclude that other alternatives that are not explicitly
mentioned below, can be correct as well.
QUESTION 1 (9 Points)
Mr Peter Janssens and Ms Leen Voet are two Dutch nationals residing in Maastricht. They have a
longstanding relationship and are co-owners of a house situated in Moraira (Spain), each with a share
of 50%. In addition, Ms Riet Voet, Leen’s daughter born out a prior relationship, has a right of use,
registered in the Spanish Land Register, over the shares held by Leen. Riet has been residing in that
house for the past 18 months (an extended “gap” year…)
Peter and Leen put an amicable end to their longstanding relationship. However, as to the property
in Spain, they disagree. While Leen wishes to continue the co-ownership, Peter wishes to realise the
interests that he holds in that property. In the absence of agreement on the termination of the
relationship of co-ownership, Peter brings an action before the Maastricht District Court for an order
appointing a lawyer to sell the property and fixing a minimum price for the house.
A) Will the Dutch court have international jurisdiction to hear Peter’s claim?
B) Which law will be applied to Peter’s claim by the competent court?
C) Imagine the house is eventually put for sale market but Riet refuses to leave the property.
Will the Spanish authorities enforce an eviction order issued by the Dutch court?
Answer
The case should be characterized as a dispute on the termination of the co-ownership between two
longstanding life partners (the case does not mention they are bound by a registered partnership).
a) [3 points] Jurisdiction
Jurisdiction for claim (for a judicial termination of the co-ownership or for a court
authorization to sell the house despite Leen’s opposition). Peter may have filed a
contractual claim against Leen so that she is forced to sell her share but this is not what
he, according to the facts of the case, has asked the court…
Determination scopes of Brussels I Regulation

- Material scope: art. 1, it is a civil matter between two private individuals
- Formal scope: depends on the provision that will be invoked (see afterwards) but, in
any event, the minimum requirement for the application of the Regulation’s general rule
on jurisdiction is met (defendant is domiciled in the EU). Alternatively, Art 24 applies
regardless of the parties’ domiciles.
- Temporal scope: Article 66 and Article 81. The Regulation is applicable to procedures
instituted on or after 10 January 2015. The temporal scope is met as proceedings will
start after regulation became applicable and in force.
Brussels I Regulation is applicable to the facts of this case
- Which jurisdiction rule of this Regulation? Art 24 (1)
- Art 24 is the highest provision on the hierarchy of jurisdiction rules and assigns exclusive
jurisdiction to one MS only. As these rules are exceptions to the main rules of the Regulation (in
particular Art 4), they must be applied restrictively.
- The proceedings have as their object a right in rem (ie property)
- The exception for short-term tenancies is not applicable
- Outcome for the case: Dutch courts have no jurisdiction, exclusive jurisdiction of place where
immovable property is located = Spanish courts.
b) [3 points] Applicable law:
Termination of co-ownership falls within the scope of the proprietary statute of goods. It is not
governed by uniform EU rules – the conflict rules of the State where the case is to be filed, ie
Spain, will apply.
There is no need to remember what those rules stipulate for each jurisdiction – just a very
predominant application of the lex rei sitae - . For the record, Spanish law applies on the basis of
Article 10(1) Spanish Civil Code.
c) [3 points] Enforcement of a foreign order:
Determination scope of Brussels I Regulation:
See above.
As far as recognition and enforcement is concerned, judgment must come from another
MS. Condition is met (Dutch order)
Enforcement governed by Sections 2 and 3 of Chapter 3. The relevant provision is Art 46,
according to which, enforcement will be refused if one of the grounds in Art 45 is found to exist.
This is here the case as the judgment conflicts with Art 45(e) (ii) – a Dutch judgment was rendered
in breach of the exclusive jurisdiction rule of Art 24(1) Brussels I.
QUESTION 2
Proposition:
‘The EU involvement in Private International Law has eliminated the use of nationality as a
connecting factor in PIL in the European Union’
Explain whether you agree or disagree with this proposition. Please include references to relevant
legal instruments and to other connecting factors that may have replaced the use of nationality.
• In past decades, EU PIL has considerably expanded
• None of the EU instruments in the Reader use nationality as the primary factor for
jurisdiction or applicable law purposes. Here examples could be added – reference to other
more salient connecting factors (domicile, habitual residence, etc )
• However, one cannot speak about elimination of this connecting factor – Here examples to
be added (including nationality of one MS as the prerequisite for European citizenship, case
law on nationality, etc.).
• Students should then agree or disagree with the statement. Partial disagreement appears
to be the best position in light of the sources under review.
International Law.
Question: Explain the meaning of the following Latin terms:
i) Lex causae
(1,5 points) The term ‘lex causae’ (Latin for the law that governs the cause of action, the merits of
the case) is generally used to refer to the law that provides the substantive legal rules applicable to
the case. TBD + example or illustration
ii) Forum necessitatis
(1,5 points) The term ‘forum necessitatis’ (Latin for a jurisdiction rule that applies as a last resort,
in case of need) generally refers to an exceptional jurisdiction ground that grants international
jurisdiction to the court where the dispute is filed where no other jurisdiction rule is applicable. It
expands the jurisdictional reach of that court and leaves discretion to that court to appreciate
whether there is such a need or not. TBD and example/illustration
A cargo ship caught in rough North Sea weather lost at least 270 containers, including four holding
potentially dangerous substances, on January 1st 2019. The cargo ship is registered in Panama and
headed for Germany’s Bremerhaven from the port of Antwerp. It appears that the cargo ship was
on German waters when it lost part of its containers.
The local authorities of one of the Frisian Islands, an archipelago off the North western coast of The
Netherlands, contact you about the possibilities of recovering the significant costs of cleaning its
beaches and territorial waters after the incident. They are of the view that the owner of the cargo
ship, the French-based company MSC, is liable for the damage caused.
A) Will the Dutch courts have international jurisdiction to hear any legal action against MSC?
B) Which law governs this case?
a) [4,5 points] Jurisdiction
Civil liability case
Determination scopes of Brussels I (recast) Regulation

- Material scope: Art. 1; in particular whether an action filed by public authorities is a
“civil or commercial mater”? – YES; in this case the action may be filed by a public
authority, but not acting in the exercise of its (public law) powers [see Bogdan 2016, p.
34]. Furthermore, this is a tort, which is a civil matter.
- Formal scope: depends on the provision that will be invoked (see afterwards) but, in
any event, the minimum requirement for the application of the Regulation’s general rule
on jurisdiction is met (defendant is domiciled in the EU). Art. 4 – 6 in conjunction with
63 (since it is a legal person)
- Temporal scope: Art. 66 and 81; The regulation is applicable to procedures instituted on
or after 10 January 2015. The temporal scope is met as proceedings will start after
Regulation became applicable and in force.
Brussels I (recast) Regulation is applicable to the facts of this case
- Which jurisdiction rule?

[Not within the scope of exclusive or protective rules, no choice of court]
Alternative application of Art 4 or Art 7(2)
Outcome for the case:

Art 4 : courts of the domicile of the defendant (‘forum rei’). Defendant is French-based company
MSC; seeing how the defendant is domiciled in France (Art. 63), the French courts have
international jurisdiction.
Art 7(2) : In matters relating to tort (characterisation as a ‘tort, delict quasi-delict’; in this case
environmental tort), a person domiciled in a MS may be sued in another MS (see also Art. 5), and
namely in the courts for the “place where the harmful event occurred”. Application of this rule
depends on the argumentation on “place of the harmful event”.
ECJ case: Bier v. Mînes de Potasse; either the place where the event giving rise to the damage
occurs or where the damage occurs (‘Handlungsort’ vs. ‘Erfolgsort’). The claimant may determine
which courts he seizes in case these two diverge.
- Place of the event? Ship was in German waters when the containers were lost, so
German courts would have international jurisdiction
- Place of the damage? In the Netherlands – Dutch territorial waters and beaches were
polluted (no mention of other places), so Dutch courts are competent. The question of
indirect damages or indirect victims is not apparent in this case.
Specific answer to the question: YES, Dutch courts have jurisdiction
b) [4,5 points] Applicable law:
Determination scope Rome II Regulation

- Material scope: Article 1: civil and commercial matter, non-contractual, conflict of laws
situation; in this case, it concerns a tort, which is a civil matter. Fulfilled.
- Formal scope: universal scope of application ( Article 3))
- Temporal scope: Article 31 in conjunction with 32: event giving rise to the damage
occurred after entry into force (31); whilst 32 stipulates that the Regulation is
applicable from 11 January 2009. Fulfilled in this case.
Rome II is applicable.
Which provision?
scheme of application of Rome II

- [choice of law is possible (Art 14), but there is no mention of such a choice]
- Special rules: application of Art 7 as these facts can very well be characterized as an
environmental damage, since nature (North Sea, beaches of the Frisian Islands) is
polluted by the cargo and requires a clean-up. Result? Either: art 4 (see below) or the
law of the country where event giving rise to damage occurs, provided claimant bases
his claim on that law. In this case, this would mean German law.
- Article 4: ‘country in which damage occurs’: in this case the Netherlands, so Dutch law.
Irrelevant are the place of the event or of the indirect consequences
- Article 4(3): ‘manifestly closer connection’
- Art 17 on rules of safety and conduct may apply (students should have noted this)
Answer: the law of the Netherlands applies, unless the Frisian authorities choose to base their
claim on German law.
SCHEMATIC MODEL ANSWERS
Matthias Kohler, who resides in Bonn (Germany), bought a horse from a breeder in the south of
Portugal, after consulting the seller’s website “everyhorse.com”, which is available in different
languages including German. Mr Kohler wishes to ride the horse during his yearly summer vacations
in the Algarve so the horse remains in Portugal. Prior to the purchase, which took place two months
ago, the horse was examined at the veterinary clinic in Faro (Portugal) and was certified to be in
good condition. However, after a first installment, Mr. Kohler refuses to pay the remaining purchase
price.
A) The Portuguese breeder brings action before the court in Faro and Mr Kohler does not appear.
Will the Portuguese court have international jurisdiction to hear the breeder’s claim?
B) Imagine this different scenario: Mr Kohler wants to terminate the contract because of the
horse’s poor condition and files his claim in Bonn. Will the German court have international
jurisdiction to hear Mr Kohler’s claim?
C) Which court or courts, in your opinion, have international jurisdiction to hear a claim of Mr
Kohler against the veterinary clinic for an allegedly fraudulent certificate?
ANSWER A
The relevant instrument is the Brussels I Regulation (temporal, material and geographical scope of
application are met).
The case does not fall under the exclusive heads of jurisdiction (Art 24) so it is possible to examine
the application of Article 26, which is not applicable because Mr Kohler does not enter an
appearance.
Next, one has to consider whether the contract is a consumer contract in the sense of Art 17.
Mr Kohler buys the horse “outside his trade or profession” (for his holidays in South Portugal) and
the breeder directs its activities, inter alia, to the German market (website in German, etc). If
these conditions are met, Art 18(2) states that the only court that has jurisdiction with regard to
such consumer contracts is the courts of the Member State where the consumer is domiciled, i.e.,
Germany.
However, the breeder can challenge the application of the consumer protection provisions arguing
that the use of the German language on a multilingual website is insufficient to meet the condition
of directing an offer to the German market. If this line of reasoning is followed, the contract falls
outside the scope of the protective rules and is to be decided on the basis of either Art 4
(defendant’s domicile = Germany) or Art 7(1)(b) (place where the horse was delivered = Portugal).
The Portuguese courts have thus international jurisdiction pursuant to the special rule for sale of
goods under Art 7 unless the contract is characterized as a consumer contract.
ANSWER B
See above for the scope of application and the applicability of the consumer provisions in the
Brussels I Regulation. If Mr Kohler is the claimant, Art 18 (1) gives him the choice between the
court of the defendant’s domicile of the court of the place where the consumer is domiciled.
However, as stated above, the consumer protection provisions are only applicable if the court
considers that the contract stems from the targeted promotional activities of the breeder towards
potential buyers based in Germany.
ANSWER C
There is no contractual relationship between the vet clinic and Mr Kohler. The case falls within the
scope of the Brussels I Regulation and, in the absence of any other relevant provisions, can only be
brought before the Portuguese courts. Art 4 and Art 7(2), which are alternative provisions, both
lead to the jurisdiction of the Portuguese courts. The place of the harmful event is Portugal, as this
is where the horse was examined and the allegedly fraudulent certificate was issued.
[if the answer assumes a contractual relationship between Mr Kohler and the vet clinic, credit is
alternatively given to the correct application of the relevant consumer contract provision. Indeed, if
the position taken above under a) & b) is that Mr Kohler is a consumer, this position should be
maintained here for consistency.]
QUESTION 2
Proposition:
‘The Rome I Regulation promotes party autonomy’
Explain whether you agree or disagree with this proposition. Please describe the concept of party
autonomy and include some examples as to how party autonomy is enhanced (or not) by the
abovementioned Regulation.
Essential aspects of the model answer:
Party autonomy refers to the ability for the parties to a contract to freely agree upon the law that
governs their contract. This freedom of choice inspires the primary connecting factor in the Rome I
Regulation (Art 3)
Some illustrations of how the Rome I Regulation promotes party autonomy:
- Art 3 does not impose any particular requirements regarding the form of choice-of-law
agreements, but it accepts that such requirements can be imposed by the applicable
national law (see the reference in Article 3(5) to Art. 11).
- the freedom of choice of the parties is not limited to legal systems having some natural
connection with the situation. The parties can in fact choose any existing legal system they
wish, for instance a system with widely known and particularly developed rules for the type
of contract involved, except for contracts for the carriage of passengers (Art 5(2) and
certain insurance contracts (Art 7(2)).
- The non-acceptance of renvoi, expressed by the stipulation that the application of the law
of any country specified by the Regulation means the application of the rules of law in force
in that country other than its rules of PIL, ensures that the choice made by the parties is
not circumvented by the relevant conflict rules of the chosen law.
[Other relevant examples – see Bogdan 2016, pp. 126-129]
On the other hand, there are certain restrictions to party autonomy, for instance in cases
involving a so-called weak party. Furthermore, the overriding mandatory provisions of the law of
the forum prevail over the law chosen by the parties (Art 9) and the exception of public policy may
be invoked to avoid the applicability of the chosen law (Art 21).
Explain the meaning of the following Latin terms:
i) Lex rei sitae – the law where the good is situated
ii) Forum rei – the defendant’s domicile
Istvan is a 10 year old boy from Hungary, who lives with his mother in Budapest. Istvan’s father,
Jonas is a Belgian man who lived with them in Budapest until January 2019 and then moved back to
Belgium. Jonas and Istvan’s mother were not married but lived together for 12 years before the
relationship definitively broke down. Istvan only has the Hungarian nationality.
A) In these circumstances, can Istvan’s mother (on Istvan’s behalf) file a support (maintenance)
claim against Jonas before the Budapest courts? Which instrument applies to this case if the
claim is filed today (=April 2019)?
B) Imagine the Hungarian court renders a favourable decision for Istvan. Is that court order
enforceable in Belgium?
ANSWER A
The relevant instrument is the Maintenance Regulation (temporal, material and

geographical scope of application are met).
The Budapest courts have international jurisdiction as Budapest is the place where the
creditor is habitually resident (Art 3 (b). There is no choice of court between the parties
pursuant to Art 4 and there is no sufficient information to determine whether Art 5 is
applicable.
[the question is on the international jurisdiction of the Budapest courts – no deduction of

points if, in addition to the above, a student considers the question of the applicable law]
ANSWER B
As above, the relevant instrument is the Maintenance Regulation. Yes, the decision is
directly enforceable by the Belgian enforcement authorities, as there is suppression of
exequatur pursuant to Art 17 of the Maintenance Regulation. The EU is a Member Party to
the 2007 Hague Protocol and, as a consequence, Section 1 of Chapter IV of the
Maintenance Regulation applies.
Course
Examinaton

2019-2020 27 January 2020 9 am 3 hours BA
SUGGESTED MODEL ANSWER
answer. It does not exclude that other elements that are not explicitly
mentioned below, can be taken into consideration as well.
Timo de Wit, a Dutch national, and Marie Duchenne, a French national resident in Lyon, are co-
owners of a house situated in Torrevieja, Spain. Timo, who is the owner of apartment No 10 in that
house, has his home address at this location, where he permanently resides since he retired. Marie
Duchenne, who is the owner of apartment No 20, lives in Lyon and uses her apartment, which was
designated for residential purposes, for tourist purposes by regularly letting it out to holiday guests.
Timo has not been successful, despite long exchange emails, in persuading Marie that using the
apartment for tourist purposes, contrary to its designated use and arbitrarily in the absence of
consent of the other co-owners, interferes with his rights of co-ownership. He therefore seeks to
bring an action before the District Court of Torrevieja to prevent Marie from using the apartment for
rental purposes. As you can imagine, Marie is not of the same view and, among other things, is
unwilling to defend her case before the Spanish court.
a) Is the Spanish court, in your opinion, the one with international jurisdiction to hear this case?
b) Before the competent court, Marie argues that the tenancy agreements between herself as
the owner and the holiday guests are governed by French law (as stipulated in one of the
contractual clauses) so that French law is applicable. In your opinion, is French law applicable
to Timo’s claim?
Answer
The case should be characterized as a dispute on the exercise of ownership of an immovable

property by the defendant.
a) [4,5 points] Jurisdiction

Determination scopes of Brussels I Regulation
- Material scope: art. 1, it is a civil matter between two private individuals
- Temporal scope: Article 66 and Article 81. The Regulation is applicable to procedures
instituted on or after 10 January 2015. The temporal scope is met if we assume that the
facts recently took place.
- Geographic scope: The elements of the case are situated in EU States bound by the
Regulation.
Brussels I Regulation is applicable to the facts of this case if Timo filed the case on or after
10 Jan 2015.
- Which jurisdiction rule of this Regulation? Art 24 (1)
- Art 24 is the highest provision on the hierarchy of jurisdiction rules and assigns exclusive
jurisdiction to one MS only. As the rules in Art. 24 are exceptions to the main rules of the
Regulation (in particular Art 4), they must be applied restrictively.
- The proceedings have as their object the extent and conditions of the exercise of a right in rem
(i.e. property) on an immovable property.
- This is not a tenancy and the exception for short-term tenancies is not applicable.
- Outcome for the case: Exclusive jurisdiction of place where immovable property is located =
Spanish courts.
b) [4,5 points] Applicable law:
Marie argues that the tenancy agreements between herself as the owner and the holiday guests
are governed by French law (as stipulated in one of the contractual clauses) so that French law is
applicable. This argument is not relevant because Timo’s claim is characterized as a proprietary
claim and not a contractual claim.
The answer could be broken down in the following steps:
1) Is Rome I applicable?
No, this Regulation is not applicable because the case falls outside the material scope of this
Regulation. The claim is not based on a contractual obligation between the parties to the dispute.
2) How to characterize the claim?
In line with the argumentation used above (which confirms the interpretative alignment based on
the autonomous interpretation of the Regulations – as explained in Lecture 4), the case concerns a
proprietary claim.
The relationship between Timo and Marie is not a contractual one but relates to the scope of the
proprietary statute of goods. It is not governed by uniform EU rules – the conflict rules of the State
where the case is to be filed, ie Spain, will apply. Students are not expected to know domestic private
international law rules – just a very predominant application of the lex rei sitae for immovable
property (Lecture 5).
How would the Spanish competent court characterize the dispute? Three methods of characterization
are possible (lege fori, lege causae and autonomous characterization). The latter is relevant when
treaties and regulations are applicable, so not in the present case.
QUESTION 2
Proposition:
‘The doctrine of F.C. von Savigny remains pivotal to EU Private International Law’
Explain whether you agree or disagree with this proposition. Please include references to the main
ideas proposed by this eminent author in the evolution of Private International Law and to three
legal instruments that support your position.
• Von Savigny’s contribution to PIL is very significant because it left behind the so-called
statutists’ theory that had been applied since the Middle Ages. The statutists looked at
international cases from the perspective of their domestic law and were mainly interested
in assessing whether such legal norms can be applied to cases involving foreign elements.
• In contrast with the statutists, von Savigny did not enquire whether a legal norm was
applicable to a case with foreign elements, but rather sought the seat of the legal
relationship (Sitz der Rechtsverhältnisse). He posed the question of the applicability of
domestic or foreign law and thereby approached the applicable law question not from the
perspective of a given legal system, but from the perspective of the legal relationship. In
consequence, von Savigny did not base his approach on the superiority of the forum’s legal
system but rather on the equality of forum and foreign law. His approach was in search of
the proper law, defined as the one with the closest connection with the relationship under
review.
• Von Savigny proposed a completely new approach (the Copernican revolution) and
highlighted the importance of comity (respect) among nations which are interconnected.
• Modern PIL in EU is dominated by EU Regulations and HCCH Conventions. All these
international instruments are multilateral and, as such, they follow the methodological
principle formulated by von Savigny, that is, the seat of the legal relationship to connect
the situation with the applicable law.
• Here examples to be added (with reference to the relevant provision(s) where this
approach is followed) – could be any of the international instruments with rules on
applicable law – Rome I, Rome II, Rome III, the 1996 Child Protection Convention, the
2007 Maintenance Protocol, etc.
• Students should therefore agree with the statement. They could also refer to the
prevalence of party autonomy or to statutist-oriented devices to argue that von Savigny’s
influence has gradually decreased.
International Law.
Explain the meaning of the following Latin terms and illustrate with an example:
i) Lex rei sitae
(1,5 points) The term ‘lex rei sitae’ (Latin for the law of the place where the good is located) is
generally used to determine proprietary aspects of goods, that is property and other rights in rem
vested on those goods. More suited for immovable than for movable goods + example or
illustration. This concept refer to applicable law, not to jurisdiction.
ii) Favor divortii
(1,5 points) The term ‘favor divortii’ (Latin for in favour of divorce) refers, in the context of PIL, to
jurisdiction grounds or connecting factors that enable alternative courts to have jurisdiction or
alternative applicable laws. Such rules are designed to minimize the effects of substantive norms
that would have restrictive approaches to divorce. Example/illustration from Brussels IIbis or Rome
III.
Romina, a Romanian citizen and Giancarlo, an Italian citizen were married in Iași, Romania, on 2
September 2010, and a child Pietro was born out of their relationship on 23 June 2015. Pietro was
born in Verona, Italy, where the couple established their common habitual residence shortly after
their wedding.
The relationship between Romina and Giancarlo has broken up and, since July 2019, Romina is back
in Iași, Romania, where she hopes to definitively settle. Their son stayed with Giancarlo in Italy.
By an action before the Court of First Instance of Iași on 13 October 2019, Romina filed a petition
for divorce in respect of Giancarlo, claiming that the parties’ marriage should be dissolved. As
accessory claims, Romina requests a court authorization to use the surname borne prior to her
marriage as she has been using Giancarlo’s surname since their marriage. As to Pietro, she requests
a court order establishing that parental responsibility in respect of their minor child should be
exercised jointly and that Pietro should reside with her in Romania. Finally, she requests that
Giancarlo should be required to pay maintenance and the costs of proceedings.
a) Would you agree with the decision of the Romanian court that it lacks international
jurisdiction over the heads of claim concerning parental responsibility and the requirement
to pay maintenance for Pietro?
b) Which law governs the requested change of surname by Romina?
c) Suppose the Romanian court dissolves the parties’ marriage even though, under the
applicable law, the divorce petition can only be granted in case of a previously granted legal
separation. Would a mistake in the application of the law prevent the recognition of this
divorce order in Italy?
a) [3 points] Jurisdiction: two distinct claims:
a.1) Parental responsibility
Determination scopes of Brussels IIbis Regulation

- Material scope: Art. 1 (1)(b.); YES.
- Geographic scope: The facts of the case are situated in MS that apply the Regulation.
or after 1 March 2005. The temporal scope is met as proceedings are instituted in
October 2019.
Brussels IIbis Regulation is applicable to the facts of this case
- Which jurisdiction rule?
Pursuant to Art. 8 (2) Br. IIbis, Article 8(1) is subject to the articles 9 (not relevant in casu), 10
(not relevant in casu) and 12. Art 12 may be applicable IF:
1) The Romanian court has international jurisdiction for the divorce. Check all the alternative
grounds in Art. 3 of the Regulation and the answer is that the court does not have
international jurisdiction YET because Romina has only been back three months in Romania
before she files the proceedings. As a result, the first condition is not met.
2) There are other conditions as well that come into play if the condition of art. 12 (1) would
have been fulfilled. They are met only if Giancarlo has accepted expressly or otherwise in
an unequivocal manner the jurisdiction of the Romanian court AND it is in the superior
interests of the child that the case is decided in Romania.
Art 8 : general jurisdiction: habitual residence of the child = Italy. The Romanian court has no
Specific answer to the question: yes, you agree with the conclusion that the Romanian courts do
not have international jurisdiction based on the Regulation. Furthermore, they cannot invoke
domestic rules on international jurisdiction because another court in a MS has jurisdiction (Italian
courts, see Art. 14)
a.2) Maintenance
Determination scopes of Maintenance Regulation

- Material scope: Art. 1(1); YES.
- Geographic scope: The facts of the case are situated in MS that apply the Regulation.
- Temporal scope: Arts. 75 and 76; The regulation is applicable to procedures instituted
on or after 18 June 2011. The temporal scope is met as proceedings are instituted in
2019.
The Maintenance Regulation is applicable to the facts of this case.
Which jurisdiction rule?
Since arts 4 and 5 are not relevant in casu, Art 3 as the general rule with alternative jurisdiction
factors: based on the facts we know, none is met in the current case. The Romanian court has no
Arts 6 and 7 cannot be applied as it is clear that the Italian courts have international jurisdiction
(both the maintenance creditor (ie the individual to whom maintenance is owed = the child, even
though the claim is filed on his behalf by his mother because he is a minor) and maintenance
debtor have hab res in Italy.
Specific answer to the question: yes, you agree with the conclusion that the Romanian courts do
not have international jurisdiction based on the Regulation. Furthermore, they cannot invoke
domestic rules on international jurisdiction because another court in a MS has jurisdiction (Italian
courts, see Art. 6)
b) [3 points] Applicable law to the name issue:
Determination scope Rome III Regulation

- Material scope: Article 1: divorce and legal separation. However, Art 1(2) excludes the
“name of the spouses” even though the issue arises as a preliminary or incidental
matter in divorce proceedings
- No need to check further : Rome III is not applicable.
This issue is not governed by uniform EU rules – the conflict rules of the State where the case is
filed, i.e. Romania, will apply. You were not expected to know domestic private international law
rules.
c) [3 points] Recognition in Italy of a Romanian divorce order
Determination scope Brussels IIbis Regulation

- Material scope: Article 1(1)a
- Geographic scope: The facts of the case are situated in MS that apply the Regulation
and the judgment is rendered in a EU State.
or after 1 March 2005. The temporal scope is met as proceedings are instituted in 2019.
Recognition will happen without any procedure being required (Art. 21). If Giancarlo or a third
party wishes to challenge the recognition, they can only invoke the grounds for non-recognition in
Art. 22. A mistake in the application of the law is not as such sufficient to contest the recognition –
it does not feature among the grounds for non-recognition. According to Art. 26, no review as to
the substance is possible.
The answer is therefore negative – the material error is not a ground for non-recognition.
PIL JANUARY 2021 EXAM
MODEL ANSWERS
A company headquartered in Toulouse (France) is a world leader in the production of car

tyres. In its biggest factory in Frankfurt an der Oder (Germany), where its main business
activities are conducted and the large majority of its clients are located, the safety
protocols are not respected. One night in 2020 disaster strikes: a large fire ensues in the
factory. The fire causes terrible pollution of the air. Huge toxic clouds drift towards the
Polish city of Slubice. Numerous inhabitants of Slubice suffer breathing problems and
have to be rushed to hospital. A group of victims want to sue the company for damages
for their medical costs.
For David, an American citizen who lives in Prague (Czech Republic), the fire is a tragedy
as well. He has been working as an engineer for the company for the last five years. Three
weeks a month he oversees production at the company’s plant in Linz (Austria), one week
a month he works in the factory in Frankfurt an der Oder. The company fires David
because the loss of the German factory means that there is less need for staff. David
suspects the company is using the fire as an excuse to get rid of him. In his contract, the
following provision can be found: “All disputes arising out of or in connection with this
contract shall be subject to the exclusive jurisdiction of the courts of Paris (France). This
contract is governed by French law.”
1) Which court(s) has/have international jurisdiction to hear the claim of the Polish
victims against the company? [6 points]
Brussels Ibis Regulation
MS: civil and commercial matters (art. 1.1)

GS: all countries involved are EU MS
TS: proceedings after 10 January 2015 (art. 66.1 in connection with art. 81)
General jurisdiction (art. 4): courts of domicile of defendant (domicile of legal person defined
by art. 63).
Company has statutory seat in France (it is ‘headquartered’ there) and its principal place of
business in Germany (it has its ‘main business activities’, ‘large majority of clients’ and ‘biggest
factory’ there).
Therefore: French courts and German courts
Special jurisdiction (art. 7.2): courts for the place in a MS where the harmful event occurred.
In the Bier judgment the ECJ ruled that when the place of the event giving rise to the damage
and the place where that event results in damage are situated in different MS, both places are
covered under the place where the harmful event occurred (double forum, claimant has a
choice).
Therefore: courts of Frankfurt an der Oder and courts of Slubice.

The victims have the choice between the courts indicated.
Common mistakes
- Talking about applicable law in the context of a question regarding jurisdiction
- Forgetting about art. 4 or about art. 7.2 (e.g. using art. 4 only as a necessary condition to
be able to apply art. 7.2 or treating art. 7 as a lex specialis ruling out application of art. 4)
- Referring to art. 62 instead of art. 63, or not referring at all
- Not making a distinction between statutory seat and principal place of business
- Not realising that the various possibilities for domicile under art. 63 are alternatives and
that a company can thus have up to 3 domiciles (and that it is therefore not necessary to
determine which of the domiciles is the most dominant one)
- Giving jurisdiction to Polish courts as courts of domicile
- Not making a distinction between locus acti and locus damni
- No reference to Bier
- Reference to Shevill
- Only finding one court competent under art. 7.2
- Not seeing that art. 7.2 designates courts on a local level
2) Which national law is applicable to the claim for unfair dismissal lodged by David
against the company? [4 points]
Regardless of the competent court of David’s choice, the court will always designate the
applicable law on the basis of the Rome I Regulation as all countries involved are bound by
Rome I.
Rome I Regulation
MS: contractual obligations in civil and commercial matters (art. 1.1)

GS: all countries involved are MS (apart from David’s nationality but not relevant)
TS: contract concluded after 17 December 2009 (art. 28)
Employment contract is governed by the law chosen by the parties in accordance with art. 3.
However, the choice may not deprive the employee of the protection afforded to him by the
mandatory provisions of the objective applicable law (art. 8.1). The parties chose French law
in the contract.
The objective applicable law is the law of the country in which or, failing that, from which the
employee habitually carries out his work in performance of the contract (art. 8.2).
David works 75% of the time in Austria and only 25% of the time in Germany. The habitual
place of work is in Austria.
Therefore: French law applies but David is entitled to the protection of the mandatory
provisions of Austrian law.
Common mistakes
- Talking about jurisdiction in the context of a question regarding applicable law

- Only applying art. 3, without art. 8
- Not realising that you can only apply art. 8 and that within art. 8.1 a reference is made to art. 3
- Seeing the choice of court provision as a choice of law
- Thinking that there is no choice of law because the clause is unilateral (only the company made the
choice) and the employee probably had no other option but to sign the contract
- Referring to art. 4 which is not allowed for employment contracts
- Referring to art. 3.3 and 3.4 which are not applicable in this case
- Not realising/understanding that employee is always entitled to the mandatory provisions of law of
country of habitual place of work; no reference to art. 8.2
- Referring to both Austria and Germany as habitual place of work, instead of only Austria
- Arguing that habitual place of work cannot be established as employee works in two countries,
therefore applying art. 8.3
- Although realising that employee is protected, thinking that he is protected by the whole law of
country of habitual place of work instead of only its mandatory provisions
- Thinking that the mandatory provisions of habitual residence instead of country of habitual place of
work protect the employee
- Taking a concrete stance as to whether the law of country of habitual place of work is actually more
protective or not (or arguing that it is not because there are common employment standards in EU
law)
- Stating that the firing deprives David of his rights
- Thinking that the choice of law (in its entirety) is invalid if the law of country of habitual place of
work is more protective
- Concluding that one or more other laws apply on top of the chosen French law
- Confusing mandatory provisions under art. 8.1 with the overriding mandatory provisions of art. 9
Case 2
Erik, an ambitious Dutch law student, studied for an LL.M. at Maastricht University in the
academic year 2011-2012 after having obtained a bachelor’s degree in law from the same
university. In the first week of the programme, he met Simona, a Kazakh national, and they
quickly fell in love. After graduation, the couple moved to Amsterdam, where Erik started
working as a lawyer. Simona also found a job at an Amsterdam branch of an international
bank. They married in Amsterdam on June 27th, 2013. Their first child, Monika, was born in
2015, and their son Frank quickly followed in 2016. In early 2017, the couple moved to
Germany, as Simona landed a high-paying job at an international institution in Frankfurt. Erik
decides to quit his life as a lawyer in order to spend more time with Monika and Frank.
From the moment they moved to Germany, cracks started to appear in the couple’s
relationship: Erik resents living away from his family. Simona has little sympathy for Erik, since
she has been living away from her family for years and Erik has never been willing to visit his
wife’s family in Kazakhstan. Being lawyers, Erik and Simona made an agreement in case their
marriage would fall apart: in a document signed by both spouses on August 10th 2017, they
stipulated that the competent court to hear their divorce proceedings, should it come to such
event, would be the Maastricht District Court, hoping that a return to the city where they fell
in love would rekindle the flame of their relationship; the law applicable to a divorce would
be Dutch law. Any claim for maintenance, both for children and for one another, would also
be governed by Dutch law under their agreement.
In 2020, Simona’s father develops a severe illness and has to be hospitalized in his hometown
Almaty. Chances for recovery are slim. Simona therefore decides to spend more time with her
father, and arranges with her work the possibility to work from Almaty one week a month.
During one of her monthly visits to Kazakhstan, she runs into Antonin, an old friend of hers
from the time she was a high school student in Almaty. They fall in love. Seeing this as an
opportunity to settle in Almaty, close to her family, she decides to divorce Erik. Antonin, a
lawyer specialized in private international law, advises her to quickly file proceedings in
Almaty during her monthly visit.
On October 20th, 2020, Simona files for divorce in the Almaty district court. Kazakhstan’s PIL
rules allow for jurisdiction in divorce proceedings when one spouse has Kazakh nationality,
which Simona has. Simona makes sure to file all documents necessary for the case to
commence, before returning to Frankfurt.
On her return to Frankfurt on October 25th 2020, she admits to Erik that she has been in a
relationship with Antonin and that she has filed for divorce. She presents him with the
summons to appear before the Almaty District Court for a hearing on January 18th, 2021. She
informs Erik that she plans to move to Almaty by February 2021 and wishes to take the
children with her.
Erik, distraught by the news, is unwilling to consider divorce proceedings in Almaty. Therefore,
he wants to file for divorce himself, with the utmost speed. Notwithstanding the couple’s
agreement, he files for divorce in the Frankfurt district court on October 26th, 2020. Given the
fact that the children go to school in Frankfurt and only speak German and Dutch, he cannot
accept them moving with Simona to Kazakhstan: in his view, it would simply not be in their
best interest. Given that Simona has made it clear that she plans to move to Kazakhstan, he
also files for maintenance for the children and for himself.
A) Does the Frankfurt district court have jurisdiction to hear Erik’s claim for divorce? (4
points)
Instrument: Brussels IIbis regulation
TS: applicable to legal proceedings instituted after 1 March 2005, see art 64 juncto 72:
proceedings instituted in October 2020 so fulfilled (0,5)
GS: all MS are bound by this instrument (only Denmark excluded, see recital 31), relevant MS
are Germany and Netherlands (0,5)
MS: fulfilled, see art. 1(1): this question is about divorce (0,5)
Jurisdiction: Frankfurt district court has jurisdiction under art. 3.1.a), indents 1, 3 and 5. (1,5;
if invalidity of their choice not dealt with: -0,5; if several (correct) options not listed – forum
divortii: -0,5)
Even though both spouses opted for the Maastricht court to have jurisdiction per their
agreement in 2017, Brussels IIbis doesn’t allow for a choice of forum (see art. 6 -> spouse who
has habitual residence in MS can be sued only in accordance with articles 3-5: exclusive nature
of jurisdiction)
NOTE: habitual residence is not defined in Regulation: case-by-case assessment of degree of

integration in a social and family environment. It is clear from the facts of the case that Simona
is habitually resident in Germany: she spends 75% of her time there (before 2020 we can
assume even 100%), her husband and children live there, her habitual place of work is there,
etc.
Students should also spotted that there might be an issue with lis pendens here. Art. 19 cannot
be applied however, since Kazakhstan is not a MS. Whether or not the court will have
jurisdiction will depend on German PIL rules on lis pendens (it’s likely that it would have
jurisdiction, given the close connection of the case to Germany) (1 point; art 19 needs to be
mentioned; 1 point awarded if student reached conclusion that article 19 is not applicable
here; 0,5 point if the student spotted the potential problem of lis pendens)
Common mistakes
- Many students seem to think that one is habitually resident in a country once he/she
has lived there for a year. That is NOT what the fifth indent of art. 3(1)(a) says.
- Many students thought that Simona had her habitual residence in Kazakhstan. From
the facts of the case, it should be clear that this is not so.
- Some students read the question wrong and answered as if the question was whether
Simona could file in the Frankfurt district court.
- Many students did not give all possible grounds for jurisdiction under art. 3(1)(a). This
led to a deduction of 0,5 points.
- Many students seem to think Brussels IIbis is applicable to proceedings instituted from
August 1st 2004 onwards. That’s not the case. Or they only provide the date on which
the instrument enters into force (August 1st 2004, which is not sufficient to determine
the temporal scope).
- The issue of whether their choice-of-court agreement is valid or not was ignored by the
vast majority of students. Brussels IIbis does not allow for a choice and this should have
been mentioned (deduction of 0,5 points).
B) If the Frankfurt district retains jurisdiction, which law would be applicable to the divorce
proceedings? (2,5 points)
Instrument: Rome III regulation: enhanced participation
TS: applies to all proceedings instituted after 21st June 2012 (articles 18 juncto 21); fulfilled in
this case as proceedings take place in 2020 (0,5 point)
GS: fulfilled: Germany takes part in the enhanced cooperation, see recital 6 (0,5 point)
MS: fulfilled, see art. 1(1): this case is about divorce (0,5 point)
Application: parties made a choice for Dutch law. Their choice for Dutch law is valid under art.
5.1.c -> Dutch law applies because Erik has Dutch nationality at the time the agreement was
made (invocation of art. 12 to any provision of Dutch law is unlikely) (1 point) The fact that
the Netherlands do not take part in Rome 3 is irrelevant, given the universal application of the
instrument (art. 4).
Common mistakes:
- Many students indicate that article 5 allows for a choice of law, and thus declare the
parties’ choice to be valid. They probably didn’t read art. 5, which indicates that their
choice is limited to certain laws that have a close connection to the case facts. Thus,
they needed to check whether the choice for Dutch law is allowed under art. 5.
- Netherlands does not participate in Rome III.
C) If the Frankfurt district court would have jurisdiction over the maintenance claim, which
law would the court apply to the maintenance claim for both his children and for himself?
(3,5 points)
Art. 15 Maintenance Regulation -> 2007 Hague Protocol. However, Maintenance Regulation is
not necessary as a gateway to the Hague Protocol since the latter instrument is directly
applicable in Germany. It is of course not wrong to mention the link between the Regulation
and the Protocol. Therefore: no points deducted if students do go through Maintenance
Regulation.
Instrument: 2007 Hague Protocol:

TS: met; art. 25: look at table: 1 August 2013; however, already applicable earlier within the
EU (from 18th June 2011 onwards because of art. 4 Council Decision of 30 November 2009)
(0,5 point; but this was very leniently corrected: both 18th June 2011 and 1 August 2013 were
deemed to be correct)
GS: fulfilled: Germany is a signatory state (0,5 point)
MS: fulfilled, see art. 1(1): claim about maintenance (0,5 point)
Maintenance for the children (1 point)
Parties made a choice for Dutch law, but art. 8(3) does not allow for a choice of law since the
children are under 18.
Applicable law: art. 3(1) -> children as creditors are habitually resident in Germany, so German
law will apply. Art. 4 is applicable to this relationship, but it leads to the application of art. 3
Maintenance for Erik (1 point)
Choice for Dutch law: is valid under art. 8.1.a -> Dutch law (also correct: 8.1.d)
Possible application of art. 13 (public policy) (no points awarded for this mention)
Common mistakes:
- Many students applied art. 7 HP. This is incorrect, since that provision deals with a
choice made for the purpose of a specific procedure. Moreover, it would require the
applicable law to be the law of the forum state. Students that relied on article 8 next
to article 7, were still given points however (if not, only few students would have scored
here). Students who relied solely on article 7 to decide that the choice-of-law was valid,
were not awarded any points for this part of their answer.
- A lot of students forgot about the maintenance for the children, the inapplicability of a
choice of law agreement on maintenance for children or just forgot about the choice
that Erik and Simona made.
- Some students mix up creditor/debtor. If they assessed that Simona was habitually
resident in Kazakhstan, that led them to the applicable law of that country, which
would be wrong.
DISCUSSION QUESTION
In a short essay of maximum 700 words, give your opinion about the following statement:
“The application of overriding mandatory provisions is an illustration of the unilateral method in

private international law.”
Proposed structure and distribution of points
Introductory paragraph where your position as to the statement is anticipated: the statement
is indeed correct, as will be demonstrated in what follows.
After a brief description of what the unilateral method in PIL entails (2 points), this essay
describes OMP (2 points).
Most importantly, assess whether the statement is correct and why. Use available sources:
references to the text on Foundations of PIL by G. Rühl, or to other relevant sources, are
welcome (3 points).
Concluding sentence: repeat position.
Structure and coherence of arguments (no contradictory arguments, no irrelevant arguments,

etc) (3 points)
In my opinion, the statement is accurate as overriding mandatory provisions (OMP) operate

in accordance with the unilateral method in PIL.
The unilateral method stems from the Statutists, the Italian scholars of the 12th century:
when having to determine which city-state’s law would apply in a particular case, they would
approach the question by defining the intended spatial reach of the conflicting local laws.
(more elaboration is possible, by referring to Bartolus as one of the prevailing Statutists; by
distinguishing between factors – either personal, territorial or mixed). This unilateral method
is opposed to the prevailing contemporary method, the multilateral method which is a
system that assigns a legal relationship to a legal order with the help of predefined
connecting factors such as nationality or habitual residence. This method was originally
developed by Von Savigny in the XIXth century. Von Savigny’s ideal to achieve an
international harmony of decisions presupposed an equal treatment of foreign and local law
and the search of the applicable law by means of neutral pre-established criteria. This stands
in sharp contrast with the Statutists (and also the neo-Statutists such as Brainerd Currie in
the XXth century) which consider the law, and the law as a representation of prevailing State
interests, as the pivotal factor for the determination of the applicable law.
In contemporary PIL, an overriding mandatory provision is a national rule, which is

considered of such paramount importance that it remains applicable regardless of the
otherwise applicable law by operation of the relevant connecting factor. The overriding
mandatory provisions express a prevailing public interest and, as such, impose their
prevalence despite the international nature of the case. Reference is made here to the
several EU Regulations where the application of OMP is safeguarded (Rome I, Rome II, Rome
III, etc) and the CJEU case law (in particular, da Silva Martins in the context of Rome II, where
the European Court of Justice reminded that an extensive analysis of that provision is
required and it only qualifies as OMP “it is of such importance in the national legal
order that it justifies a departure from the law applicable” pursuant to the conflict
rules). By reference to this case, it is possible to illustrate how exceptional the application of
OMP is (e.g. the limitation periods of the right of recovery are examples of rules that do not
meet the threshold of OMP). On the other hand, a rule that, for instance, ensures equal
treatment among victims despite their racial background may qualify as OMP. Reference to
be made well to the difference between OMP and mandatory provisions, whose
interference with the otherwise applicable law depend on uniform applicability
requirements and a common rationale (for instance, consumer or employee protection).
To assess whether a domestic provision indeed qualifies as OMP, the adjudicator uses similar
criteria than those applicable by the unilateral method described earlier on: one relies on
the wording of a particular substantive rule, on the presumed or apparent legislative intent,
on the rationale of that provision as safeguard of fundamental values of a given system (can
be the forum State, but can be another State; see, for example, Article 9(3) Rome I).
Therefore, the unilateral method is illustrated by the way OMP operate: OMP apply
regardless of the international nature of the dispute. They supersede the otherwise
applicable law determined on the basis of multilateral conflict rules on the basis of
unilaterally determined factors by a given law system. It is possible to differentiate here as
well between the exceptional application of OMP in contemporary PIL and a unilateral
approach as a general method.
Concluding paragraph which confirms that OMP are contemporary reminiscences of the
unilateral method as developed by Statutists and revived by neo-Statutists.
ANSWER MODEL
Case 1: Mr di Lorenzo
Mr. Di Lorenzo is a teacher working at the Italian School of Paris since 2017. The Italian State pays
mr. Di Lorenzo’s wages pursuant to an employment contract which stipulates that any
employment disputes should be brought before the competent court in Rome. As a result of the
Pandemic budget cuts, the Italian State lowers his wages by a significant amount. Mr. Di Lorenzo
objects, and he refuses to bring his case before a judge in Rome, as he is still working in Paris.
a) Determine, using the applicable legal instrument, the court and applicable law of the
dispute. Does the choice of court clause stand? (3 points)
• Is it a question of PIL? Yes
• Court: Br. I Recast, check Scopes, Choice of Court clause only valid if agreed after dispute
so not here, we can use 21 (1) (a) Forum Rei as domicile is in a MS (Paris)
• Which law: Rome I, check scopes, art. 8 habitual place of work – French law
• Conclusion: Court of Paris, French law, no valid clause, well-written and argued
• Points can be deducted for illegibility or incorrectness.
b) Please advise whether the Italian law imposing budget cuts due to the pandemic is an
overriding mandatory provision in EU Private International Law. (2 points)
This is a question of overriding mandatory rules art. 9 Rome I Regulation (1 point),
mentioning case law (Nikiforidis) (0,5 points) general structure and writing (0,5 points).
Conclusion: yes, Italy can rely on article 9 but will have to prove economic hardship at the
level of Greece (this is possible under current debt servicing rules).
The stress of his dismissal and the fact that mr. Di Lorenzo’s wife whom he has been married to
for twenty years never moved with him, did not improve mr. Di Lorenzo’s marriage. Having had
enough, his wife goes to the Italian court and files for divorce. When mr. Di Lorenzo hears this, he
goes to the Paris court and files for divorce there, despite them having married in Italy.
c) Which law applies to the divorce, and which court has jurisdiction? (3 points)
• Brussels I and Rome I check scope
• Applicable law: common nationality of the spouses etc: Italian law
• Court: Court first seised, Rome.
• Well-argued and no mistakes,
d) Mrs. Di Lorenzo also wants full custody of their 8-year-old son, Filippo. Can the Italian
court where she filed her claim rule on Filippo’s custody?
• Yes, likely also the habitual residence of the child
Case 2: Maaszalm
PlutoMed is a French company specializing in producing radioactive substances for the medical
sector. The company is located in France, by the Maas river, close to the French-Belgian border.
One key concern for this industry is safety and quality control.
Maaszalm is a Belgian company experimenting with introducing salmons into the Maas. To start
out, they have introduced some 500 salmons in a netted area of the Maas just on the border of
Belgium and France (on the Belgian side). Water of the river flows through the nets, but the fish
cannot leave.
When a particularly devious manager of PlutoMed discovers that certain batches of nuclear
material are no longer medical grade, he dumps the batch into the Maas, hoping the river will
dilute the material without causing too many problems. As Maaszalm’s fish are close to the
dumping site, they die after contact with the nuclear material.
Maaszalm finds out the culprit and wants to bring the French company to court. PlutoMed says the
fishes’ death clearly is an accident, and even if it wasn’t, there is no way they could have killed fish
in a completely different country.
a) Which court is competent to hear this case, and which law would apply? (5 points)
• Brussels I, check scopes
• Rome I, check scopes
• Apply Brussels I – can start proceedings in both France and Belgium, applying also
Bier/Mines de potasse d’Alsace
• Rome II: Law of country in which damage occurs – so Belgium
• Points can be subtracted for patent mistakes or illegibility
(case continues on the next page)
Notwithstanding your answer to a), imagine that Maaszalm went to court in Belgium and managed
to get a money judgment against PlutoMed. However, PlutoMed refuses to pay the amount and is
not too bothered as all its assets are located in France.
b) Would Maaszalm be able to seize PlutoMed’s French assets with a court order from
Belgium? (5 points)
• Question of enforcement
• Brussels I (check scopes)
• Yes – without further procedure.
• 1 point for argumentation, structure of argument etc.
• Points can be deducted for manifest mistakes
Essay Question
Statement:
“The relevance of party autonomy for international commercial contracts is noticeable both in the area
of international jurisdiction as in the area of applicable law.”
Model answer
Private autonomy is a general principle of private law. In the context of private international law
(PIL), party autonomy means the right for parties to determine where, and on the grounds of which
law, any disputes arising out of their international commercial contract will be resolved. The
principle of party autonomy in PIL is as such the corollary of the general principle in contract law
according to which the parties stipulate which rules apply to the different contractual issues arising
out of their transaction (the formation of the contract, the rights and obligations of the parties, the
remedies in case of contractual breaches, etc.). (approx. weight 2 points, depending on formulation
and extension).
The statement under review refers to two, out of the three, main areas in PIL: international
jurisdiction, understood as the selection of the forum where an international dispute is resolved and
applicable law, understood as the set of rules to determine which law governs a contract.
If we specifically focus on EU PIL (being the focus of this course), it is important to note that both
international jurisdiction and applicable law are mainly governed by uniform EU instruments, in
particular the Brussels I Regulation and the Rome I Regulation.
[It would be OK, but not explicitly required, to expand here a bit on the main characteristics of these
two Regulations].
Coming to the statement, it is indeed correct to state that party autonomy is a prevailing connecting
factor/jurisdiction basis in the area of international commercial contracts.
With regard to the identification of the relevant court(s) in the event of a dispute on an international
commercial contract, Art. 25 of the Brussels I Regulation confers a very significant role to party
autonomy, by establishing that the dispute will be settled by the court chosen by the parties. A
mention to the Choice of Court Convention would be expected as well (3 points for section on
jurisdiction as a whole).
With regard to the choice of law in international commercial contract, the main source is Art. 3
Rome I Regulation. Reference can also be made to the 2015 Choice of Law Principles, as a source of
soft law. As the statement only concerned commercial contracts, the references to the rules on
consumer contracts, employment contracts, etc. are superfluous. References to the prohibition of
renvoi or the application of overriding mandatory provisions are possible, provided there is a link to
their impact on party autonomy. (3 points for the section on applicable law).
In conclusion, the statement is correct. It is equally correct for choice of law and court insofar as
commercial contracts are concerned, as the jurisdiction rules with higher ranking in the Brussels I
Regulation are of no of very little relevance for international commercial disputes (2 points).
1.1 (4 points)
Scope max 1pt

Linda’s claim concerns non-contractual liability/tort. This is a civil and commercial matter in
the sense of Article 1 Brussel Ibis and is therefore within the material scope of that
Regulation. As we need to assess the international jurisdiction of the French and Dutch
court, the case is also within the Regulation’s geographical scope as it is binding on all MS
(excl. Denmark). And also within temporal scope, Article 81.
The claim is an ordinary tort claim and does not involve exclusive jurisdiction, choice of
forum or protected class (consumer/employee). Jurisdiction is therefore determined on
basis of general rules of Articles 4 and (possibly) 7.
Article 4+62 max 1.5pt

According to Article 4 the courts of the MS where the defendant has his or her domicile has
jurisdiction (1pt). Defendant is Angelina. Her domicile is determined in accordance with the
law of the forum seized, Article 62 (1/2pt), and likely is Netherlands/Maastricht. The courts
of the Netherlands would therefore have jurisdiction.
Article 7(2) max 1.5pt

The French courts cannot derive jurisdiction from Article 4 BrIbis but may be able to do so on
the basis of Article 7 (alternative jurisdiction), particularly paragraph (2) as Linda’s claim is a
matter relating to tort. According to 7(2) the courts of the place where the harmful event
occurred also have jurisdiction (in addition to Article 4 court). (1/2pt) In order to determine
the place of harmful event, reference must be made to CJEU case Mines de Potasse d'Alsace.
The ‘place where the harmful event occurred’ comprises both the place of the harmful act
(Handlungsort) as well as the place where that act results in damage (Erfolgsort). However,
the resulting damage in the sense of Article 7(2) only concerns the direct or initial damage.
Consequently, the place of the harmful act is Canada (accident) but Canada is also the place
where that act caused the initial/immediate damage (injury) (1/2pt). The fact that Linda
later suffered loss of income and medical expenses in France is not ‘damage’ in the sense of
Article 7(2) and French courts cannot derive jurisdiction from Article 7(2). Moreover, as
Canada is not a MS, Article 7(2) is not applicable (see Article 7 first sentence). (1/2pt)
1.2 (3 points)
The applicable international choice of law instrument is the Hague Convention on the Law
Applicable to Traffic Accidents (1971). The case is within material scope of Article 1 (road
traffic accident with vehicle(s) on open road), and temporal and geographical scope of the
Convention are fulfilled (NL and Fr have ratified Convention (1pt). The case would also be
within the scope of Rome II Regulation. However, there is no actual need to examine scope
as Article 28 Rome II gives precedence to the Convention in any event. Consequently, Rome
II is not applicable! (1/2pt)
- If no mentioning of HC and application of Rome II => max 1 pt
- If HC was considered but held inapplicable because of scope => max 1.5
- If HC was applied as well as Rome II without making a choice => max 2
- If HC was applied without Article 28 => max 2.5
According to Article 3 of the HCTA the law applicable is the law of the place where the
accident happened, which is Canada. (1pt) Canada is not a Contracting State to the HCTA but
Article 11 provides for universal (formal) scope: the convention is applicable even if it refers
to the law of a non-contracting state. (1/2pt).
1.3 (3 points)
(This part was graded separately from part a): French courts lack jurisdiction).
According to Article 39 Br I a judgment given in a Member State which is enforceable in that
Member State shall be enforceable in the other Member States without any declaration of
enforceability being required. Assuming French judgment is enforceable in France (MS), it is
ipso jure enforceable in the Netherlands (MS), without any special procedure or declaration
(exequatur). (1.5pt)
However, Article 46 provides that on the application of the person against whom
enforcement is sought (1/2pt refusal is not automatic or ex officio), the enforcement of a
judgment shall be refused where one of the grounds referred to in Article 45 is found to
exist. (1/2pt)
The grounds of Article 45 reflect the high threshold for refusal. Some characterization of
those grounds, as public policy related, should be made before concluding that those
grounds are unlikely to be present in this case. (1/2pt)
2.1 (5 points)
The Dutch court has to check the applicability of the Brussels II Regulation (1.5 points for all
three scopes):
-Material: matters of parental responsibility, including rights of custody and access (Article 1
sec. 1 sub b and sec. 2 sub a).
-Geographical: EU MS Denmark is not bound (recital 96)
-Temporal: legal proceedings instituted on or after 1 August 2022 art 100 and 105
Pursuant to the general jurisdiction rule of Article 7 Brussels II, the Dutch court cannot obtain
jurisdiction in this case because Max is habitually resident in Poland since after the approval
from both parents Max moved to Poland with the intention to stay there; Max goes to pre-
school in Poland, speaks Polish, and lives with his Polish family. (With respect to the
autonomous interpretation of habitual residence see p. 96 of Concise Introduction to EU PIL
M. Bogdan and M. Pertegás Sender) (1 point).
Considering question 2.1 ‘Can the Dutch court have jurisdiction to decide about rights of
custody and access regarding Max’, Article 8 Brussels II does not have to be assessed in order
to answer this question (1 point).
As indicated by the title of Article 8, this provision merely concerns the continuing jurisdiction
of the court in relation to access rights. Hence, Article 8 Brussels II cannot provide the Dutch
court jurisdiction to decide about rights of custody and access regarding Max.
Assessing the application of Article 8 Brussels II may nevertheless produce a reduced number
of points.
Yet, the Dutch court could obtain jurisdiction on the basis of Article 10 Brussels II under the
following three cumulative conditions (0.5 point):
1) section 1 sub a, i) Max has a substantial connection with the Netherlands since Ben
is habitually resident in the Netherlands and ii) the Netherlands is the former habitual
residence of Max (0.5 point)
2) sub b Ben and Lianca have to agree on the jurisdiction of the Dutch court (0.25 point)
3) sub c the exercise of jurisdiction is in the best interests of the child. It could be argued that
Max has been living in the Netherlands since he was born. Furthermore, the court may
consider that this condition is met as he is still a very young child whose life will be
connected to the Netherlands. (0.25 point)
2.2 (5 points)
The Polish court has to check the applicability of the Maintenance Regulation (1.5 point for
all three scopes):
-material: maintenance obligations arising from a parentage Article 1 sec. 1
-geographic: EU MS except in Denmark see recital 48, see also Article 1 sec. 2
-temporal: proceedings instituted after 18 June 2011 (excluded certain provisions) Article 75
and 76
According to Article 15 of the Maintenance Regulation, the law applicable to maintenance

obligations shall be determined in accordance with the Hague Protocol of 23 November 2007
on the law applicable to maintenance obligations in the Member States bound by that
instrument (0.5 point).
The Polish court has to check the applicability of the Hague Protocol 2007 (1.5 point for all
three scopes):
-material: maintenance obligations arising from a family relationship such as parentage
Article 1 sec. 1
-geographic: 32 Contracting States including the EU, Poland is thus bound by the Hague
Protocol.
-temporal: see Article 22-25 (the Hague Protocol entered into force in Poland on 1-8-2013)
According to the general rule of Article 3 maintenance obligations shall be governed by the
law of the State of the habitual residence of creditor. (0.5 point) In casu Max is the creditor
and his habitual residence is in Poland. Therefore, Polish law is generally applicable (0.5
point)
Yet, Article 4 sec. 1 sub a contains a special rule in the case of maintenance obligations of
parents towards their children. This rule stipulates that “if the creditor, is unable, by virtue of
the law referred to in Article 3, to obtain maintenance from the debtor, the law of the forum
shall apply”. This has no effect in this case because the claim is filed in Poland so the law of
the forum and the law of the creditor’s habitual residence both point towards Polish law (0.5
point).

In a short essay of maximum 600 words, can you discuss whether the concept of
“judgment” is autonomously interpreted in EU PIL and why (not)? You may refer to
any relevant legal sources and any areas of private law discussed in this Course.
Take a position on whether the concept of judgment is autonomously interpreted or not (1 point)
Refer to the instruments where the concept of judgment plays an important role (2.5 points):
Brussels I, Article 2(a)
Brussels II, Article 2(1): refer to the use of “decision” instead of “judgment” in the current
Brussels II Regulation.
Maintenance Regulation: “judgment” as a “decision” type.
(may be others, if relevant – primarily in the area of R&E of judgments)
Explain what autonomous interpretation means, possibly by contrast to an interpretation based

on domestic law (2 points).
Refer to the reasons why an autonomous interpretation is desirable in EU PIL, e.g.

- uniform interpretation as the logical corollary for uniform rules (for EU PIL or EU law in
general)
- diverse interpretation defeats the purpose of uniform instruments in this area of the law:
uniform rules subject to domestic interpretations may result in different substantive
outcomes.
- Illustration: one “judgment” will be automatically recognized abroad while a “judgment”
from another State is not considered within the scope of EU PIL instruments (2 points)
CJEU strives for autonomous interpretation (1,5 points), as recently confirmed by CJEU (Grand
Chamber), 15 November 2022, Case C-646/20. See also Bogdan & Pertegás handbook p. 14 in
fine.
Frequent mistakes
- Question misunderstood as meaning autonomy of EU PIL

- Autonomous understood as a uniform system for the R&E of judgments at EU level.
- Classification is not the same as interpretation, even if both legal issues may use an
autonomous method.
Model answer (PRI 3018, April 2023)
Question 1
a) Which court(s) in the European Union has/have jurisdiction to hear the claim of Dan Jürgonson
to avoid his contract with the “Antique Treasure Store”? (4pt)
 Scope of application Brussels Ibis

o The three scope should be checked (1pt)
 Protected consumer contract
o Central issue in order to determine which court(s) may have jurisdiction is whether the contract concerns
one within the scope of Article 17 or not. If so, jurisdiction is exclusively regulated by Article 18 and 19.
o Students are expected to discuss whether the contract is a ‘consumer contract’. (1pt)
o Additionally, students must discuss whether this consumer contract comes within the scope of Article
17(1)(c). Students should refer to the case Pammer Alpenhof and use the facts of the case to determine
whether the conditions of Article 17(1)(c) are filled. (1pt)
 In case the conditions are considered to be fulfilled, then in absence of a choice of forum (Article 20) Dan can bring
suit against the store in either his domicile or that of the store. Article 62/63, this would be Germany and
Bulgaria.(1pt)
 In case the conditions are considered not to be fulfilled, Article 18 does not apply but jurisdiction should be
determined according to the general rules. In absence of choice of forum, this would mean a) Article 4 (domicile
defendant), which is Bulgaria and b) Article 7(1) as the matter relates to a contract. According to 7(1)(b) place of
performance of obligation in question is, since it concerns a sale of goods, the place of delivery according to the
contract. (reference may be made to CarTrim case). Students can argue that delivery already took place in
Sofia/store or that delivery must still take place in Germany, Dusseldorf. (1pt)
b) What law is applicable to the contract between Dan Jürgonson the “Antique Treasure Store” in
those courts? (3pt)
 Scope Rome I Regulation (1pt)
 Discuss whether contract is protected consumer contract in the sense of Article 6. Reference may be made to answer
under a) but answers should be consistent. (1pt)
 As there is no indication of a choice of law, apply either (1pt)
o Article 6 => law of habitual residence Dan => German law
o Article 4(1)(a) => law of habitual residence of seller => Bulgarian law.
c) Irrespective of your answer to question a) and assuming a Bulgarian court hears the case, would
Dan Jürgonson be able to rely on the rule of New Zealand law declaring the contract null and
void? (2pt)
 Applicable law to the contract is either German or Bulgarian law (under b) and not NZ law.
 However, the NZ rule would be an overriding mandatory provision in the sense of Article 9(1) RomeI. (1pt)
 Those rules may be applied irrespective of the lex contractus either (1pt)
o if it is an OMP of the forum (9(2), which is Bulgaria and therefore not applicable,
o or a third state 9(3). In that case, it must concern OMP of the state “where the obligations arising out of
the contract have to be or have been performed, in so far as those overriding mandatory provisions render
the performance of the contract unlawful.” As the contract is not to be performed in NZ, Article 9(3)
does not allow for the application of the NZ rule either.
d) Irrespective of your answer to question a) and b) and assuming a Bulgarian court hears the case,
would Dan Jürgonson be able to rely on the rule of German law prohibiting the trade in human
body parts? (1pt)
 The German rule also concerns an OMP. Since we are before a Bulgarian court, there are two situations in which
Dan could rely on this rule:
o Either the applicable law to the contract is German law, in which case the rule may be applied as part of
the lex contractus. Or
o Effect may be given to the rule on the basis of Article 9(3) as Germany is where obligations under the
contract must be performed (delivery).
Question 2
With regard to Paco’s action in Spain, does the child have a habitual residence in Spain
or Finland? Refer to the relevant legal source and its interpretation (3 points)
The applicable legal framework in the EU is the Council Regulation (EU) 2019/1111 of 25 June
2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and
the matters of parental responsibility, and on international child abduction (Brussels II
Regulation). Chapter III of the Brussels II Regulation applies to child abduction cases. With
regard to the territorial scope, Spain and Finland are both EU Member States. With regard to
the temporal scope, this Regulation applies to this event as it occurred after 1 August 2022 in
accordance with articles 100 and 105 of this Regulation (1 point).
The Brussels II Regulation complements the Convention of 25 October 1980 on the Civil Aspects
of International Child Abduction (Child Abduction Convention). Spain and Finland are party to
the Child Abduction Convention - as ratifying States - (see inter alia recitals 40 and 73, articles
1(3), 22 and 96 of the Brussels II ter Regulation) (1 point).
The child’s habitual residence is Finland as it is there where the child has some degree of
integration in a social and family environment (see below). Alternatively, it can also be argued
that the child has not acquired a habitual residence (1 point).
(Some additional information)
According to established CJEU case law, the habitual residence of the child could not be Spain.
The child has never been in Spain and a foetus cannot acquire habitual residence, thus the
retention is not wrongful.
The term “habitual residence” has been interpreted by the CJEU as the centre of the child’s life
(C-512/17). Habitual residence is an autonomous concept. In this regard, Mercredi v. Chaffe
(C-497/10 PPU) sets out a list of factors to consider. Recent case law of the CJEU has made
clear that the presence of the child in the Member State is an unavoidable requirement in
order for him or her to be considered as habitually resident: UD v. XB (C-393/18 PPU).
The case of a pregnant woman who travelled to another Member State to give birth has been
considered by the CJEU in the case OL v. PQ (C-111/17 PPU). The CJEU held that (with regard
to the Brussels II bis Regulation): “Consequently, in such a situation, the refusal of the mother
to return to the latter Member State together with the child cannot be considered to be a
‘wrongful removal or retention’ of the child, within the meaning of Article 11(1).”
By reference to the relevant legal source, explain whether or not the petition for return
filed by Paco in Spain should be successful and why. (3 points)
The legal framework applicable is the following: Chapter III of the Brussels II Regulation (in
particular, article 22) and articles 3 and 4 of the Hague Child Abduction Convention (1 point).
Return applications under the 1980 Child Abduction Convention are not proceedings on the
substance of parental responsibility (see recital 73 of the Brussels II ter Regulation).
Responses indicating that the habitual residence is (more likely) Finland or inexistent
As the habitual residence of the child is Finland or cannot be determined (see above), the
retention was not wrongful and thus this is not a child absuction under the Brussels II
Regulation and the Child Abduction Convention (1 point). The action for the return of the child
should be dismissed (1 point).
Further info: See OL v. PQ (C-111/17 PPU) ECLI:EU:C:2017:436.
Responses indicating that the habitual residence is (more likely) Spain
Alternative: If it was argued that the habitual residence of the child is Spain, then the retention
is wrongful and the action for the return of the child is likely to be successful (1 point).
Assume that in June 2023 Merja files for divorce in Finland and that two months later
Paco files for divorce in Spain. In which country the court has jurisdiction and why?
What should happen to the proceedings filed in the other country? (4 points)
- With regard to jurisdiction and reasons (2 points)
The Brussels II Regulation is applicable, its material scope is inter alia divorce, geographic
scope: Finland and Spain are EU Member States, temporal scope: applies to proceedings
commenced on or after 1 August 2022 (articles 100 and 105 of the Regulation) (1 point).
The Finnish court is indeed competent to hear the case: Merja had resided for at least 6
months in Finland immediately before the application (she arrived in Finland in September
2022) and is a Finnish national in accordance with Article 3 (a)(vi) of the Brussels II ter
Regulation. The Spanish court also had jurisdiction under other grounds contemplated by
article 3 of the Brussels II Regulation (e.g. art. 3 (a) - (ii)(v)(vi)) but in this case it was second
seised (1 point). Both applicants filed in their own jurisdiction.
- Proceedings in the other country: lis pendens between the Finnish and the Spanish
courts (2 points)
First seised rule: The Finnish court was first seised and the Spanish court was second seised.
Therefore, Article 20(1) of the Brussels II ter Regulation on lis pendens applies. The Spanish
courts shall on its own motion stay its proceedings until such time as the jurisdiction of the
court first seised is established. (1 point)
Once the jurisdiction of the Finnish court is established, then the Spanish court shall decline
jurisdiction in favour of the Finnish court. Art. 20(3) of the Brussels II ter Regulation applies (1
point).
Essay question (600 words)
Nationality is a rather infrequent connecting factor in EU PIL and, as elaborated below, it is not the most
suitable connecting factor in EU PIL. (1 pt for taking a position about the statement)
Connecting factor is the criterion that determines the applicable law (by analogy, the criterion that
determines which court(s) have international jurisdiction could also be considered, although it is better to
refer to those as jurisdictional factors or heads of jurisdiction). (1 pt) Frequent connecting factors are one
of the parties’ habitual residence or the domicile (e.g. the seller’s habitual residence in a sales contract
without choice of law – Art. 4(1)(a) Rome I). (2pt for relevant examples)
At the domestic level, PIL rules can opt for nationality to ensure that domestic law remains applicable to
their nationals regardless of the place where they reside. For instance, it can be chosen by countries whose
nationals have emigrated to different parts of the world and to ensure that the domestic law remains
applicable, for example, with regard to family law issues.
By contrast, at the EU level, the choice for nationality as the connecting factor has been challenged as its
application may have detrimental consequences for the proper functioning of the internal market (1 pt).
Reference can be made to CJEU judgments such as Micheletti, García Avello, Grunkin-Paul, etc (2 points
for references and some detail about the referred decision).
In the same vein, EU PIL instruments attach a growing importance to other connecting factors such as
the choice of law by the parties (based on party autonomy), like in Art. 3 Rome I or, with stricter
conditions, Art. 14 Rome II or Art. 5 Rome III. In the absence of choice of law, habitual residence
prevails over nationality as the preferred connecting factor in EU PIL (see for instance Art. 8 Rome III).
Furthermore, nationality (of an EU Member State) automatically confers EU citizenship to the individual
(Art. 21 TFEU) and recent CJEU judgments have shown the relevance of this status (EU citizen) in
determining the applicable law to certain cases relating to the free movement of persons (e.g. Pancharevo)
(2 points)
1 point for consistency of the arguments in favour or against the statement and essay formulation.

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PIL theory questions

c) Suppose the answer to the previous question (question b) should be affirmative,

a) Explain how the dependent approach of the preliminary or incidental question

[9 points] Schematic answer

ii) Forum necessitatis

b) Would a divorce order of the court which eventually had jurisdiction, be

c) Name 2 PIL techniques or methods that contribute to the goal of international

e) What is a “conflit mobile”? (1 pt)

QUESTION 4 (10 points)

c) Explain as to whether or not the following proposition is correct:

d) What is meant by special mandatory rules (2 pts)?

Explain the following Latin terms:

f) Favor divortii (1 pt):

1. QUESTION 2 (10 points)

i) forum prorogatum (1 pt)

iii) renvoi (2pts)

“The use of uniform conflict rules guarantees the international harmony of

QUESTION 3 (10 points)

• Incidental question regarding the validity of the marriage will be answered

QUESTION 1 MOHAMMED AND ANA (10 POINTS)

• Credit would also be given if students considered international public policy:

o Violation of fundamental principles of the lex fori o “Invoked in case of:

▪ unacceptable applicable foreign law

• Positive dimension public policy

QUESTION 2 PRIVATE INTERNATIONAL LAW NOTIONS (10 points)

1. i) actor sequitur forum rei (1 point)

2. ii) forum non conveniens (1 point)

3. iii) dépeçage (1 point)

- lex fori approach (independent approach): classification/characterisation of the concrete

Inheritance Claim (4 points)

The private international law of succession of country A states:

The private international law of succession of country B states:

Consider the advantages and disadvantages of joint application: the EU Regulation

• - However, it requires a good understanding by EU judges of the interaction

“The application of overriding mandatory provisions is an illustration of the unilateral method in

Proposed structure and distribution of points

Concluding sentence: repeat position.

Structure and coherence of arguments (no contradictory arguments, no irrelevant arguments,

Schematic model answer

In my opinion, the statement is accurate as overriding mandatory provisions (OMP) operate

In contemporary PIL, an overriding mandatory provision is a national rule, which is

Question 1 (10 points)

- Austria: art. 20 jo. 18 IPRG:

Question 2 (10 points)

a) Which court is competent, if A wants to start court proceedings? (3 pts)

A. Applicability of the “Brussels I” Reg.

Therefore the Brussels I Reg. is applicable.

B. Exclusive Jurisdiction and Prorogation of Jurisdiction

C. Jurisdiction over consumer contracts

As a result, A is allowed to start proceeding against B only in Germany.

A. Application of the CISG

A. Applicability of the “Brussels I” Reg.

Thus the Brussels I Reg. is applicable.

B. Exclusive Jurisdiction and Prorogation of Jurisdiction

Question 3 (10 points)

e) What is a “conflit mobile”? (1 pt)

Question 4 (10 points)

c) Explain as to whether or not the following proposition is correct:

d) What is meant by special mandatory rules (2 pts)?

Explain the following Latin terms:

f) Favor divortii (1 pt):

Proef/oefen tentamen 2019, vragen en antwoorden

Private International Law (Maastricht University)