to Polish Private
International Law
3rd Classes

Dr. Mateusz Pilich
Chair of Int’l Private and Trade Law,
University of Warsaw

Structure of the Conflict Law Rules (A Supplement) .

Dutch: statuut. in Polish "statut kontraktowy"  Lex:  means "the law" in Latin  Commonly used together with a proper Latin noun in the genitive. the "law applicable to contracts" but in Spanish we may say "el estatuto contractual". it applies under the rule of conflict of laws  in many European languages (but not in English!) called in a similar way.g.g. Law applicable vs Lex…  Law applicable:  national law which governs a given relationship. French: le statut. in Dutch "het contractuele statuut". in German "das Vertragsstatut". in order to denote the connecting factor  E.g. Polish: statut. Article 11 (1) – the applicable law is the law of one's nationality – in Latin: lex patriae. e. Spanish: el estatuto  Used to designate the product of application of the conflict of laws rule  We say in English e. Article 41 (1) – the applicable law is the law of the situation of tangible property – in Latin: lex situs rei or lex rei sitae .: German: das Statut.

person. Examples of Connecting Factors Name of the connecting factor Name of the law applicable Law applicable in Latin Legal category . other legal entities office and organisational units – Article 17 PIL Place where a company was Law where the company was Lex incorporationis incorporated founded Place of celebrating the marriage Law of the place (country) where the Lex loci celebrationis Form of marriage – Article 49(1) marriage was concluded PIL Place of the damage Law of the place where the damage Lex loci damni Article 4(1) Rome II Regulation occurred Choice of law by the parties Law chosen by the parties Lex voluntatis Article 3(1) Rome I Regulation.g. 2nd sentence PIL accomplished Registered office of a company Law of the company’s registered Lex situs Corporations. a spouse. Article 14(1) Rome II Regulation The connection is ‘borrowed’ from Law governing the act or the claim Lex causae Limitation of debts or actions – the another conflicts law provision itself prescription period – Article 26 PIL . a child.) Residence (domicile) Law of the place of residence Lex domicilii Capacity and personal status of stateless persons and Habitual residence Law of the place of habitual Lex habitationis refugees – Article 3 PIL residence Place (country) where the object is Law of the place where the object is Lex rei sitae Rights in tangible objects (iura in situated situated rem) – Article 41(1) PIL Place (country) where the act was Law of the country where the Lex loci actus Form of juridical acts – Article accomplished juridical act was 25(1).example Nationality Law of nationality (of a natural Lex patriae Capacity of natural persons (e. Article 11(1) PIL) etc.

Certain Technical Problems .

e. 3 The Polish national Adam C. who instituted his Polish natural daughter as a testamentary heir. demanded a divorce decree. 2 A rich Polish businessman Jan Z. After the death of Adam C. worked as a translator for the Polish troops. . After accomplishing his mission. is married with the German national Louise C. the latter is sued by the widow for payment of the equalization of the accrued gains ('Zugewinnausgleich' ('Zugewinnausgleich').  Case study No. he was evacuated to Poland together with his familiy.. the part of the value of the deceased spouse's property in the case of the marriage termination. Trust beneficiaries would be his three minor sons. Characterization in the Conflict of Laws  Case study No. ). In December 2013 his wife Fatima S. which is a kind of the 'price' for a bride in the Arabic countries – a 'consideration' for marrying a woman. The wife of Jan Z. i. Expecting the coming death. The couple lives in Germany. is suffering from a mortal illness. he asks his lawyer to found a trust in Malta.). gets to know of her husband's intention and raises her objection against it.  Case study No. basing her claim on the contention that her husband had not performed his duty to pay a dowry (al-mahr (al-mahr). 1 An Iraqi national Ali Hassan S. where he has registered a limited liability company and invested a considerable sum of money.

Spanish. "contractual obligation". e. the court has always to choose a proper conflicts rule (into which legal category the facts of the case are to be placed?)  The object of the connection in the conflicts rule is described as a legal category ("form of the marriage". etc. respectively. "property". in the French.)  Substantive laws of various countries differ as to their notions and systematics:  Similar legal institutions may be divergently classified  Sometimes the institution the court has to deal with may be even unknown to the law of the forum . Italian. German. Roots of the Problem  Characterization called in other European languages as a "qualification" (so.g. Polish legal vocabulary)  Looking for the law applicable. "adoption".

which may justify applying of Articles 51 and 52 PILA.  Case study No. (c) the issue governed by the law generally applicable to the grounds for the divorce (Article 54 PILA)  Case study No. 2 Trust is a typically common law institution. yet unknown to the Polish substantive law. or the case of successions. the Zugewinnausgleich is a claim based on the marital property regime. (b) marital property regime (Articles 51-52 PILA). Possible solutions  Case study No. From the standpoint of the private international law. 3 According to the German Civil Code (BGB). . (c) the property (Article 41 ff PILA). (b) a successoral case (Article 64 ff PILA). 1 An unpaid dowry may be classified as (a) the gift under the contract (so a 'contractual obligation'  Rome I). the relationship in question may be perceived as: (a) a contract.

How to Proceed?  Subject-matter of the characterization – proposals:  Substantive claim  Legal rule  Legal issue ("question of law")  Four 'schools of characterization':  Lege fori (according to the law of the court's seat) – see Franz Kahn/Etienne Bartin – legal categories in conflicts rules to be understood in accordance with Polish substantive law  Lege causae (according to the law applicable) – the "vicious circle" reproach  Autonomous methods: Comparative approach – see Ernst Rabel Conflicts law of forum approach  Critical evaluation of the doctrine .

II CSK 124/05 A deceased French national died intestate. Renvoi  Case study – decision of the Supr. 2006. She left an immovable property in Poland and no living next-of-kin. Rightly so? . Polish fiscus successfully laid the claim to the immovable as her 'heir of the last resort' according to the Polish Civil Code. Court of 26 Jan.

"remaining unsettled"  Differences among legal systems concerning points of connection lead to negative conflicts  Our example: law applicable to successions: in Poland – basically national law of the deceased. standing for "sending back". so the 'split successions' scheme . in France – the law of his/her last domicile (movables) or the law of the situation of property (immovables). Meaning of renvoi  Renvoi – a French term (no unique English one).

capability of an Englishman domiciled in Germany to sign a promissory note in Poland) . Variants of renvoi  Renvoi au premier degré.e. to lex fori)  Renvoi au second degré. or the transmission – the conflicts rule in the system of law specified as applicable refers to the law of a third country (e.g. or the remission – we are coming back to the initial point (i.

Example Renvoi au premier degré aw al l a tion n d's c ea se de rty I L A– pr ope )P of 4(2 ion i c l e6 s i tuat Ar t PIL – e nch Fr .

Justification of renvoi  Designation of a law applicable has a general meaning (we mind the whole system of the law as in force in the country. striving for the international harmony of decisions  In our example: the simple convenience of the Polish court (why to apply foreign law. incl. if one can turn back to its own?) . its conflicts rules)  Respect for the foreign sovereignty  Coordination of diverging connecting factors.

see Article 20 Rome I)  Conventions – see Supr. decision of 14 Febr. Renvoi in the Polish PIL  PIL Act 2011: Article 5 – only the renvoi au 1er degré.  formal validity of juridical acts. no reference to the third country's law (exception: Article 17(2) PILA)  Exceptions from the rule. (2):  parties' choice of law.  Contractual or non-contractual obligations  EU Private International Law: generally no renvoi (the substantive law specified directly. Article 1 ) . C. para. 2013. II CSK 294/12 (1961 Hague Form of Int'l Wills Convention.

Thanks for your attention! .