Conflict of LawsConflict of LawsUnit 28Unit 28

Compare the following situations:

CASE A CASE B

An Englishman and woman are British citizens, domicilied and resident in England, went through a ceremony of marriage in England. Later: the wife petitions an English court for a divorce. The spouses are still domiciled and resident in England.

A British couple married in France, domiciled and resident in England at the time of marriage. Later on the husband petitions for divorce. At the time of his divorce petition his wife is domiciled and resident in France.

Topics to be decided:

1. the court jurisdiction (Does an English court have the competence to hear and determine a case?)

2. the selection of the appropriate rules of a system of law (English or foreign?) – the rules governing this selection are known as “choice of law”

3. the recognition and enforcement of judgements rendered by foreign courts

TERRITORYA

TERRITORYB

A CASEinvolving more than

one territory

A situation in which a case contains a foreign element...

TERRITORY: state, province, canton...

Read the following defintion and Read the following defintion and underline the key words.underline the key words.

Conflict of laws means discordance between Conflict of laws means discordance between the laws of one country and another, as the laws of one country and another, as applied to the same subject-matter,...applied to the same subject-matter,...

Rules of law have been developed to deal with Rules of law have been developed to deal with conflict of laws, rules for determining which conflict of laws, rules for determining which country’s courts are the appropriate forum for the country’s courts are the appropriate forum for the dispute, and which country’s law is the dispute, and which country’s law is the appropriate law for the resolution of the dispute.appropriate law for the resolution of the dispute.

J. E. Penner: The Law Student’s Dictionary, Oxford, 2008J. E. Penner: The Law Student’s Dictionary, Oxford, 2008

CONFLICT OF LAWSCONFLICT OF LAWS(PRIVATE INTERNATIONAL LAW)(PRIVATE INTERNATIONAL LAW)

A)A)        in in common law systemcommon law system - - a branch of international law a branch of international law that regulates all that regulates all

lawsuits lawsuits involving a "foreign" law elementinvolving a "foreign" law element   B)B)        in in civil law systemcivil law system - - a law branch of internal legal system a law branch of internal legal system dealing dealing

with with 1) 1) the the determination of which state law is determination of which state law is applicable to situations crossing out the borders applicable to situations crossing out the borders of one particular state and involving a "foreign" of one particular state and involving a "foreign" element element 2) 2) the international civil procedure and international the international civil procedure and international commercial arbitration (collisions of jurisdiction, commercial arbitration (collisions of jurisdiction, conflict of jurisdictions).conflict of jurisdictions).

PUBLIC PUBLIC INTERNATIONAL INTERNATIONAL

LAWLAW

PRIVATE PRIVATE INTERNATIONAL INTERNATIONAL

LAWLAW

CONFLICT OF LAWSCONFLICT OF LAWS

SUPRANATIONAL SUPRANATIONAL LAWLAW

- - rights between rights between several nations or several nations or

- - nations and the nations and the citizens or citizens or subjects of other subjects of other nationsnations

- conflicts - conflicts between between private persons, private persons, natural or juridicalnatural or juridical, , having relationship having relationship to more than one to more than one nationnation

- the law of - the law of supranational supranational organizations organizations

(e.g. EU law)(e.g. EU law)

Compare...Compare...

Areas of law potentialy involving conflict Areas of law potentialy involving conflict of laws:of laws:

1.1. Law of obligationsLaw of obligations (contracts, torts) (contracts, torts)

2.2. Property and successionProperty and succession (property (property inter inter vivosvivos, succession, matrimonial property , succession, matrimonial property relations)relations)

3.3. Family lawFamily law (marriage, divorce, children) (marriage, divorce, children)

Case exampleCase example• AA who has a who has a French nationality French nationality and residence in Germanand residence in Germanyy• BB who has who has American nationalityAmerican nationality, domicile in Arizona, and , domicile in Arizona, and

residence in Austriresidence in Austriaa• CC a a Swiss nationalSwiss national, owns property in Switzerland, owns property in Switzerland

a) a) A corresponds with B over the internetA corresponds with B over the internet. . They agree the They agree the joint purchase of land in Switzerland, currently owned by joint purchase of land in Switzerland, currently owned by C, but C, but they never physically meetthey never physically meet..

a)a) They They executexecutee initial contract documents by using mail, initial contract documents by using mail, followed by a postal exchange of hard copies. followed by a postal exchange of hard copies.

b)b) A pays his share of the deposit but, before the transaction is A pays his share of the deposit but, before the transaction is completed, B admits that although he has capacity to buy completed, B admits that although he has capacity to buy land under his land under his lex domiciliilex domicilii and the law of his residence, he and the law of his residence, he is too young to own land under Swiss law.is too young to own land under Swiss law.

Matrimonial cases...Matrimonial cases...

POTENTIAL PROBLEMSPOTENTIAL PROBLEMS- the place of marriage the place of marriage ≠ the territory where divorce ≠ the territory where divorce

was filedwas filed- the parties’ nationalities and residence do not the parties’ nationalities and residence do not

matchmatch- there is property in a foreign jurisdictionthere is property in a foreign jurisdiction- parties have changes residence several times parties have changes residence several times

during the marriageduring the marriage

Important expressionsImportant expressions

- conflict of laws – private international law- conflict of laws – private international law- discordance between the lawsdiscordance between the laws- the resolution of the disputethe resolution of the dispute- judicial jurisdiction judicial jurisdiction - recognition of foreign judgementsrecognition of foreign judgements- territorial diversity of legal systemsterritorial diversity of legal systems- international / interstate / intercantonal conflicts...international / interstate / intercantonal conflicts...- the choice of lawthe choice of law- foreign element (in a case)foreign element (in a case)

Translate the following sentence.

U užem smislu riječi, sukob zakona podrazumijeva sukob između zakona koji pripadaju različitim državama radi rješavanja konkretnoga slučaja koji može biti, po različitim osnovama, riješen primjenom zakona dviju ili više država.

Pravni leksikon Leksikografskog zavoda Miroslav Krleža

Zakon o rješavanju sukoba zakona s Zakon o rješavanju sukoba zakona s propisima drugih zemalja u određenim propisima drugih zemalja u određenim odnosima, NN 53/91, 88/01odnosima, NN 53/91, 88/01

Glava prva OSNOVNE ODREDBEGlava prva OSNOVNE ODREDBE Članak 1.Članak 1.

Ovaj zakon sadrži pravila o određivanju mjerodavnog prava za statusne, Ovaj zakon sadrži pravila o određivanju mjerodavnog prava za statusne, porodične i imovinske odnosno druge materijalnopravne odnose s porodične i imovinske odnosno druge materijalnopravne odnose s međunarodnim elementom.međunarodnim elementom.

Ovaj zakon sadrži i pravila o nadležnosti sudova i drugih organa Ovaj zakon sadrži i pravila o nadležnosti sudova i drugih organa Republike Hrvatske za raspravljanje odnosa iz stavaka 1, ovog Republike Hrvatske za raspravljanje odnosa iz stavaka 1, ovog članaka, pravila postupka i pravila za priznanje i izvršenje stranih članaka, pravila postupka i pravila za priznanje i izvršenje stranih sudskih i arbitražnih odluka.sudskih i arbitražnih odluka.

Read part II of this law “APPROPRIATE LAW” and make notes Read part II of this law “APPROPRIATE LAW” and make notes about about different situations and the rules about the applicability of law different situations and the rules about the applicability of law refering to them (e.g. Custody, contract, marriage).refering to them (e.g. Custody, contract, marriage).

http://www.zakon.hr/z/113/Zakon-o-rje%C5%A1avanju-sukoba-zakona-s-http://www.zakon.hr/z/113/Zakon-o-rje%C5%A1avanju-sukoba-zakona-s-propisima-drugih-zemalja-u-odre%C4%91enim-pitanjimapropisima-drugih-zemalja-u-odre%C4%91enim-pitanjima