National Private International Law Statutes Example: new Czech Act on Private International Law...

47
National Private International Law Statutes Example: new Czech Act on Private International Law 2012
  • date post

    20-Dec-2015
  • Category

    Documents

  • view

    225
  • download

    6

Transcript of National Private International Law Statutes Example: new Czech Act on Private International Law...

Page 1: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

National Private International Law Statutes

Example: new Czech Act on Private International Law

2012

Page 2: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

1 - What is PIL ?(scope of application)

• - determination of the applicable law in private law relationships containing foreign element– including application of rules not belonging to the

applicable law• - legal status of foreigners (foreign natural persons)

and foreign legal persons in private law relationships• - judicial procedure containing a foreign element• - recognition and enforcement of foreign judgments• - international legal assistance • - international arbitration

Page 3: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

External Relations

• 2 - International treaties: see the Constitution

• 3 - EU law: Czech law is not applicable where the EU regulation in force exists

Page 4: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Circumvention

• 4 - Circumvention: prohibited

• = artificial establishment or simulation of facts that create an artificial foreign element and consequently lead to the application of foreign law instead of national law

• “LAWYER, n. One skilled in circumvention of the law.”

Page 5: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

5 - Peremptory norms of the national legal order

• The provisions of the present act do not prevent the application of provisions of the Czech law applicable in all cases when their application is obligatory regardless the applicable law.

• Peremptory norms of foreign law: see Rome I

Page 6: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Rome I - Art. 9: Overriding mandatory provisions

1. Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.

2. Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum.

3. Effect may be given to the overriding mandatory provisions of the law of the country 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. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

Page 7: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

6 - Public order reservation

• Applicable law = foreign law:• - not applicable if EFFECTS of such an

application are obviously in contradiction with the national public order.

• Public order = basic principles of the legal system (for inst. the prohibition of bigamy, equality of sexes)

• The recognition of a foreign judgment may be refused for same reasons

Page 8: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

General part of the conflict of laws:21 - Qualification (characterisation)• The evaluation of a legal relationship or a fact for

the purposes of determining the applicable law shall be made according to the national law (lex fori).

• Examples: type of the contract, inheritance matter

• Qualification made after the determining the applicable law: according to that law (lex causae)

Page 9: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

22 - Renvoi

• National conflict norm (A) refers to the law of state B. Conflict norm of the state B refers

• - back to the national law (A) = applicable law: substantive law of state A

• - to the law of another state (C) = applicable law: substantive law of state C

Page 10: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

24 - Application of foreign law

• Application of foreign law = obligatory (ex officio - duty of the court), no request of the party before the court is needed.

• The law of the foreign state must be applied in the same manner as in that state (interpretation) (for inst. "relatives").

• Establishment of the content of foreign law: ex officio (duty of the court)

• Difficulties: opinion of the Ministry of Justice• Establishment of the foreign law impossible:

national law

Page 11: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

26 - Status of foreigners and foreign legal persons

(undertakings, companies)

• Foreigner = natural person not having the citizenship of the Czech Republic (Czech nationality)

• Foreign legal person: having its seat outside the Czech territory

• Basic rule: in their private law relationships they enjoy identical rights and duties as Czech nationals and Czech legal persons (= assimilation regime).

Page 12: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

continued

• Exceptions: • 1. Lack of reciprocity (when a foreign state

does not recognize the assimilation regime towards Czech subjects) - the Foreign Ministry may decide that the assimilation regime shall not be applied to subjects of that state.

• 2. Bussiness (undertaking), labor law, intellectual property protection: special statutes or international treaties (or EU law)

Page 13: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

28 - Double and uncertain nationalityDouble nationality:

• one of them Czech = considered to be a Czech nationality

• both foreign = considered to be a national of the state the nationality of which was acquired at the latest, except of cases where its factual relationship to the state of his other nationality is more intensive.

Page 14: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

No nationality or unknown nationality:

• habitual residence of the person

• if no habitual residence: current residence (staying)

• if his current residence is unknown: the person shall be considered to be a Czech national (= fiction)

Page 15: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

29 - Legal capacity

• Legal capacity (capacity to be subject of law and to legal actions) - applicable law (lex personalis):

• Natural persons: state of habitual residence (not nationality)

= domicile ?• legal actions: state where the action takes place (in

practice: local law)

• Legal persons: law of the state which was applicable for its establishment (incorporation theory)

• legal actions: same as natural persons

Page 16: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Limitation of legal capacity, guardianship

• Limitation of legal capacity, guardianship (based always on a court decision):

• Czech nationals = Czech law• Foreigners: Czech court shall take only

necessary measures (it is a matter of the courts of the foreign state)

• Declaration of death of a missing person: Czech national = only Czech court

Page 17: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Legal actions

• 41 - Legal actions: applicable law = lex causae (law applicable to the effects of the action - contract)

Page 18: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Form (type) of the action

• 42 - Form (type) of the action (...oral form, in writing...)

• - lex causae of the contract (x) or• - place of the action or• - habitual residence or• - nationality or• - place where immovable object is situated (x).• (x) = form required for the validity of the act must

be respected

Page 19: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Limitation of rights

• 46 - Limitation of rights (= period after which the right cannot be enforced): applicable law = law governing the right itself

Page 20: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Family Law

47 - Matrimonial matters

• - divorce

• - nullity of the matrimony

• - existence of the matrimony

Relationships between parents and children

Page 21: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Divorce - jurisdictionJurisdiction of national courts (there must be certain factual connection

to the Czech Republic):• both spouses Czech nationals• both spouses have habitual residence in the Czech Republic• both spouses had habitual residence in the CR in the past, one of

them still resides in the CR• the defendant has habitual residence in the CR• the plaintiff has habitual residence in the CR and the defendant

joined the action• the plaintiff has had habitual residence in the CR at least one year• .....• One of the spouses only is a Czech national: if not in contradiction

with an international treaty or EU regulation

Page 22: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Matrimonial matters - applicable law

48Capacity to marriage and conditions of its validity:

lex personalis (law of the nationality) of each of the spousesForm of solemnisation of marriage: law of the state where the

marriage is solemnizedPersonal relations between spouses:• - law of the common nationality • - law of the common habitual residence• - otherwise: Czech law (general rule: there must be some applicable

law)Relations between spouses relating to property:• - common habitual residence immediately after the solemnisation of

marriage • - common nationality in the moment of the solemnisation of

marriage• - otherwise: Czech law

Page 23: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Matrimonial matters – choice of law

Before or at the moment of the solemnisation of marriage the spouses may choose the law for their relations relating to property. The choice is limited to the

• - law of their common nationality• - law of the nationality of one of them• - law of the habitual residence of one of them• - state where the immovable property is situated• - Czech law

Page 24: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Matrimonial matters – applicable law - 2

• Divorce - applicable law for personal relations between spouses (see above)

• Special rule: if the applicable law does not allow the divorce, Czech law shall be applicable if at least one of the spouses has Czech nationality or habitual residence in the CR

• Conditions of validity of the marrige: law applicable for that in the moment of the solemnisation of marriage

• Maintenance between divorced spouses: law applied for the divorce

Page 25: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Relationships between parents and children- applicable law

Determination and denial of paternity: law of the nationality of the child

• multiple nationality: Czech law• interests of the child: law of the habitual

residence of the mother in the moment of the conception of the child

• "Material" conflict norm: If the child has its habitual residence in the CR and the interests of the child so require, Czech law shall be applicable

• .........

Page 26: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Recognition of foreign court decisions on paternity

• - one of the participants had Czech nationality: special judgment of the Czech Supreme court necessary

• - all participants nationals of the state of the court of which decided: automatic recognition

Page 27: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Maintenance

• Applicable law: habitual residence of the child

• "Material" conflict norm: If the interests of the child so require, law of the child's nationality will be applicable

Page 28: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Other matters relating to relations between parents and

children:• Hague Convention of 19 October 1996 on

Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

• (reference to a concrete convention - useful for judges and other practitioners, but rare)

Page 29: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Rights of unmarried mother

• Rights of unmarried mother (duties of the father of the child)

• Applicable law: habitual residence of the mother in the moment of the birth of the child

• The mother may invoke the aaplication of the law of its nationality.

Page 30: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Conditions for adoption

• Applicable law: both nationality of the adopted child and of the adopting person. Adopting spouses are of different nationality: conditions of both legal orders must be fulfilled.

• = Special case – two legal orders applicable at once

Page 31: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Real (property) rights

• Real rights (property and similar rights) (absolute rights - effective against all subjects)

• Applicable law: of the state where the thing (object) is situated (lex situs, lex rei sitae)

Page 32: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Creation and extinguishment of property rights

• Creation and extinguishment of property rights (ownership):

• immovables: lex situs • tangible movables: lex situs in the moment where the

decisive fact creating or extinguishing the property right occured

• = Mobile conflictLocation of a movable object may change = change of lex

situsMust be fixed to a certain moment

Page 33: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Mobile conflict

Example: Person A sells his car to person B. Contract: ownership will pass to B only after the paying of the whole price. In the moment of establishing the contract, the car is in the Czech Rep.Afterwords (before the price is payed) the car moves to Austria. Who is the owner?Czech law: AAustrian law: B

Applicable law is Czech law.

Page 34: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Passing of property

• Tangible movables - passing off property on the basis of a sales contract: law of the sales contract

• Acquisition of the title to property by prescription: lex situs at the beginning of the prescription period

Page 35: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Inheritance law

• Applicable law - basic rule: habitual residence of the deceased person in the moment of death

• = unique law applicable both for movable and immovable property

• Choice of law by the testator: • - habitual residence or his nationality in the

moment of establishing the testament (including immovable property) (very limited choice)

Page 36: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Inheritance law

• Applicable law for testaments (last will)

• (capacity to establish the will or

• legal consequences of defects of the will):

• law of the nationality or habitual residence of the testator

Page 37: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Inheritance law - Form of the testament

Form of the testament (in written, holographic will - wholly in the testator's handwriting, witnesses):

• - nationality of the testator in the moment of the establishment of the will or in the moment of his death, if the testament not valid

• - state where the testament was established or where the testator died, but if the testament is still not vadid

• - habitual residence of the testator both in the moment of establishing the will or of death or

• - for immovable property: lex situs

Page 38: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Inheritance law

• No successor: movable and immovable property and rights of the deceased person situated on the territory of the CR will pass down (fall upon) the Czech state. The state is not considered to be inheritor.

• Intellectual property rights: applicable law = lex protectionis (law of the state providing the protection).

Page 39: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Jurisdiction of Czech courts in inheritance matters

• Jurisdiction of Czech courts: If the deceased person had his habitual residence in the CR in the moment of death

• immovables: exclusive jurisdiction of Czech courts

• Property situated abroad: jurisdiction of Czech courts is given only in case that the foreign state will deliver the property to Czech courts or recognize Czech judgments in inheritance matters

Page 40: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Obligations (contracts, torts)

• Provisions of the present statute shall be applied in connection to EU regulations.

• = priority of EU law - Rome I, Rome II

General reception clause

Page 41: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Obligations (contracts, torts)

• Jurisdiction of courts:• Basic rules: Brussels regulation I

• 1. It is possible to establish the jurisdiction of Czech courts by an agreement (prorogation agreement)

• 2. Establishing the jurisdiction of a foreign court:• An agreement possible = exludes the jurisdiction

of Czech courts, which is not lost (foreign judgment not recognizable, foreign court did not accept its jurisdiction)

Page 42: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Obligations (contracts, torts)

• Contracts outside EU regulations:

• - choice of law

• - otherwise the principle of the closest connection

Page 43: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

C h o i c e o f l a w

• must be made expressly (explicitly)

• if not, must undoubtly result from the contract or facts

Page 44: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Choice of law

• General remarks to the choice of law: expression of the autonomy of will typical for private law

• Advantages:

• - predictability of law

• - convenience for parties

• - possibility to choose law of the forum - very practical

Page 45: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Obligations (contracts, torts)

• - limited choice: in special cases only for certain contracts (consumer contracts, labour contracts - unequality of parties) or outside of contract law

• - basic principle for contract law: unlimited choice (Rome I) including law of non-member states

• - non state law? = "rules of law"• - dépecage

Page 46: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Obligations (contracts, torts)

• No choice of law: alternative solution

• - closest connection

• - centre of gravity of the legal relationship

• - reasonable arrangement of the relationship

• (law of the party of the contract providing characteristical performance)

Page 47: National Private International Law Statutes Example: new Czech Act on Private International Law 2012.

Obligations (contracts, torts)

• Torts - damages (outside Rome 2)

• Applicable law: choice of law by the victim, limited to:

• - habitual residence or seat of the victim or of the person inflicting damage or

• - result of the tort (where the damage occured)

• No choce of law: closest connection