Week 1
Lecture #1
➔ Learning outcomes
◆ State, identify and apply relevant principles rules and case law to a hypothetical case
◆ Discus topics that are most relevant in today’s practice of international commercial law
➔ ICL ⇒ Legal framework for international transactions
◆ Definitions
● Legal → private law excluding public law such as tax law and international
public law
● framework → all rules, principles and statutory provisions including lex
mercatoria
● International → cross-border parties, law and assets
● Transactions → including property law, but excluding consumer law
◆ ICL has relationship with other courses such as contract/property/insolvency/private law
◆ ICL gives specific rules against background of general law
➔ History
◆ Lex mercatoria → Merchantlaw that applied everywhere (1100-1500)
● Rolls of Oleron → detailed book of law on maritime issues
● Fairs of Champagne → Places where merchants gathered to conduct
business
○ Created bills as a documents credit for payment across borders
◆ Code Napoleon → national laws gained dominance over international rules
(1800-1900)
● Development to assert national power and authority
● Napoleon codified a first edition of laws for citizens
● Code de Commerce for a specific code for commercial transactions
● Objective approach → transaction as the relevant factors
● Subjective approach → persons as the relevant factors
◆ Modern age → a need for harmonised rules as international trade increased
(1900-2000)
● Hague Conference for International Private law to designated applicable law (1893)
● EU has harmonised national laws on unprecedented scale
● Increase in globalisation if applicable law is clear and predictable
◆ Present day → global commerce
● Caused by capitalism, Technology, ICL, G10, IMF, EU
● Pro’s ⇒Peace and Prosperity
● Cons ⇒ Inequality, Financial instability, ESG and supply chain
vulnerabilities
○ Financial crisis can easily spread to world-wide connections
➔ Sources of ICL
◆ National ⇒ Contract autonomy/Usage/Court cases/Legislation
◆ International ⇒ Contract/International Trade Usage/Instruments/Parallelism/Trade
Terms
● No autonomous body of law but variety of sources and general principles of law
➔ International public law touches many aspects of ICL
, ◆ BIT’s ⇒ Bilateral Investment Treaties to protect investors by host state
◆ Investment Dispute Convention most important
◆ acta iure imperii → Capacity of State in commercial context
● CJEU Kuhn issuing bonds in commercial context is a state matter
○ Exceptional matter of crisis with exceptional measures to pay state debt
◆ Interpretation according to Vienna Convention → text, context, purpose and
objects
● Travaus preparapoires → official, documentary record of negotiation and
Reservation
Lecture #2
➔ Do we need Private International law?
◆ Contract/Lex mercatoria → party autonomy bound by mandatory law
➔ Mandatory law → Property law, Insolvency law, Regulatory law, International public law
◆ Central question: Which private law applies if not unified
● Specifically important in international court litigation
➔ Functions private international law
◆ Determine jurisdiction
◆ Determines applicable law
◆ Determine whether enforcement of rules of mandatory nature is possible
➔ Eventhough harmonised law may exist, those instruments always have limitation in their scope
◆ There will always be uncovered innovation → requirement certainty of applicable
law
➔ Global outlook of law systems → Civil, Religious, Common, Customary, Common & Civil
Law
➔ Common issues
◆ Geltungsbereich v Anwendungsbereich
● Geltungsbereich ⇒ territorial/geographical scope where a state can
enforce its law
● Anwendungsbereich ⇒ where a law might be applied
◆ Party autonomy + connecting factors
● Connecting factors ⇒ law applicable that is most connected with issue at
hand
○ Contract ⇒ Characteristic performance
○ Property ⇒ Lex situs ⇒ Place where assets are located
○ Insolvency ⇒ COMI
➔ Road map Private International Law
1. Characterization: Which sets rule apply to Private international law→ lex fori
2. Which Forum has jurisdiction
a. Scope/Qualification
b. Application of appropriate rule
3. Which law to apply
- Public policy/ordre public exception → Lex fori as emergency brake
- Mandatory rule / lois de police → May be law of third state (Rome I
Regulation)
- Renvoi → third law does not apply rules regarding conflict of laws (excl in
Rome 1)
, a. Scope/qualification
b. Application of appropriate rule
4. Recognition and enforcement
➔ Instruments on jurisdiction
◆ Brussels Ibis → EU Regulation 1215/2012 ⇒ EU
● Qualification/scope → International civil and commercial matters
○ CJEU Kuhn Bonds acted as acta iure imperii and thus no jurisdiction
○ CJEU Graphics/Schee Insolvency law matter if linked to insolvency as such
○ Excludes arbitration
◆ CJEU Uden/Deco Brussels applied if provisions conservative matter
is solved unless matter is in substance the same of arbitrage tribunal
● Application of applicable rule → forum domicili of defendant(art 4 Brussel 1)
○ Alternative or exclusive rules possible
◆ Contract → forum solutionis → place of performance (Art 7
Brussels)
● CJEU Varius/GR Software follows place of service of software
◆ Tort → forum delicti → place of harmful event (art 7(2) Brussels)
● CJEU Bier/Mines Can be Handlungsort and Erfolgsort
○ Handlungsort → harmful effect is created
○ Erfolgsort → harmful effect materialized
○ Courts of defendant cannot refuse and other MS must refuse jurisdiction
○ Domicile defined as statutory seat/COMI ( art 63 Brussels)
◆ EIR → EU Regulation 2015/848 ⇒ EU
● Limited to insolvency regulation
◆ Lugano Convention ⇒ EU, Iceland, Norway, Switzerland, Denmark
◆ Hague Convention on choice of Court Agreements ⇒ EU, Denmark, Singapore,
UK, USA
◆ Convention on recognition/enforcement of foreign judgements ⇒ US, Russia and
UK
Lecture #3
➔ Prorogation → parties have agreed jurisdiction regardless of their domicile (Art 25
Brussels Reg.)
◆ Doctrine of separability→jurisdiction clause is legally independent of contract
( 25(5) Brus)
● Choice of court may be governed by other law than the rest of the contract
◆ Non-EU parties must decide jurisdiction on own International Private Law
◆ Parties can choose alternative fora → Not possible under the Hague
Conference
◆ CJEU SIL/Agora Choice must be precise enough and a court of a MS
➔ Substantive Law (Rome 1 Reg.)
◆ EU Instrument on applicable law
● Contract → Rome 1 Reg
● Tort → Rome II Reg
● Property → national law & Collateral Directive
● Insolvency → EIR & Winding-up Directive
◆ Rome 1
Lecture #1
➔ Learning outcomes
◆ State, identify and apply relevant principles rules and case law to a hypothetical case
◆ Discus topics that are most relevant in today’s practice of international commercial law
➔ ICL ⇒ Legal framework for international transactions
◆ Definitions
● Legal → private law excluding public law such as tax law and international
public law
● framework → all rules, principles and statutory provisions including lex
mercatoria
● International → cross-border parties, law and assets
● Transactions → including property law, but excluding consumer law
◆ ICL has relationship with other courses such as contract/property/insolvency/private law
◆ ICL gives specific rules against background of general law
➔ History
◆ Lex mercatoria → Merchantlaw that applied everywhere (1100-1500)
● Rolls of Oleron → detailed book of law on maritime issues
● Fairs of Champagne → Places where merchants gathered to conduct
business
○ Created bills as a documents credit for payment across borders
◆ Code Napoleon → national laws gained dominance over international rules
(1800-1900)
● Development to assert national power and authority
● Napoleon codified a first edition of laws for citizens
● Code de Commerce for a specific code for commercial transactions
● Objective approach → transaction as the relevant factors
● Subjective approach → persons as the relevant factors
◆ Modern age → a need for harmonised rules as international trade increased
(1900-2000)
● Hague Conference for International Private law to designated applicable law (1893)
● EU has harmonised national laws on unprecedented scale
● Increase in globalisation if applicable law is clear and predictable
◆ Present day → global commerce
● Caused by capitalism, Technology, ICL, G10, IMF, EU
● Pro’s ⇒Peace and Prosperity
● Cons ⇒ Inequality, Financial instability, ESG and supply chain
vulnerabilities
○ Financial crisis can easily spread to world-wide connections
➔ Sources of ICL
◆ National ⇒ Contract autonomy/Usage/Court cases/Legislation
◆ International ⇒ Contract/International Trade Usage/Instruments/Parallelism/Trade
Terms
● No autonomous body of law but variety of sources and general principles of law
➔ International public law touches many aspects of ICL
, ◆ BIT’s ⇒ Bilateral Investment Treaties to protect investors by host state
◆ Investment Dispute Convention most important
◆ acta iure imperii → Capacity of State in commercial context
● CJEU Kuhn issuing bonds in commercial context is a state matter
○ Exceptional matter of crisis with exceptional measures to pay state debt
◆ Interpretation according to Vienna Convention → text, context, purpose and
objects
● Travaus preparapoires → official, documentary record of negotiation and
Reservation
Lecture #2
➔ Do we need Private International law?
◆ Contract/Lex mercatoria → party autonomy bound by mandatory law
➔ Mandatory law → Property law, Insolvency law, Regulatory law, International public law
◆ Central question: Which private law applies if not unified
● Specifically important in international court litigation
➔ Functions private international law
◆ Determine jurisdiction
◆ Determines applicable law
◆ Determine whether enforcement of rules of mandatory nature is possible
➔ Eventhough harmonised law may exist, those instruments always have limitation in their scope
◆ There will always be uncovered innovation → requirement certainty of applicable
law
➔ Global outlook of law systems → Civil, Religious, Common, Customary, Common & Civil
Law
➔ Common issues
◆ Geltungsbereich v Anwendungsbereich
● Geltungsbereich ⇒ territorial/geographical scope where a state can
enforce its law
● Anwendungsbereich ⇒ where a law might be applied
◆ Party autonomy + connecting factors
● Connecting factors ⇒ law applicable that is most connected with issue at
hand
○ Contract ⇒ Characteristic performance
○ Property ⇒ Lex situs ⇒ Place where assets are located
○ Insolvency ⇒ COMI
➔ Road map Private International Law
1. Characterization: Which sets rule apply to Private international law→ lex fori
2. Which Forum has jurisdiction
a. Scope/Qualification
b. Application of appropriate rule
3. Which law to apply
- Public policy/ordre public exception → Lex fori as emergency brake
- Mandatory rule / lois de police → May be law of third state (Rome I
Regulation)
- Renvoi → third law does not apply rules regarding conflict of laws (excl in
Rome 1)
, a. Scope/qualification
b. Application of appropriate rule
4. Recognition and enforcement
➔ Instruments on jurisdiction
◆ Brussels Ibis → EU Regulation 1215/2012 ⇒ EU
● Qualification/scope → International civil and commercial matters
○ CJEU Kuhn Bonds acted as acta iure imperii and thus no jurisdiction
○ CJEU Graphics/Schee Insolvency law matter if linked to insolvency as such
○ Excludes arbitration
◆ CJEU Uden/Deco Brussels applied if provisions conservative matter
is solved unless matter is in substance the same of arbitrage tribunal
● Application of applicable rule → forum domicili of defendant(art 4 Brussel 1)
○ Alternative or exclusive rules possible
◆ Contract → forum solutionis → place of performance (Art 7
Brussels)
● CJEU Varius/GR Software follows place of service of software
◆ Tort → forum delicti → place of harmful event (art 7(2) Brussels)
● CJEU Bier/Mines Can be Handlungsort and Erfolgsort
○ Handlungsort → harmful effect is created
○ Erfolgsort → harmful effect materialized
○ Courts of defendant cannot refuse and other MS must refuse jurisdiction
○ Domicile defined as statutory seat/COMI ( art 63 Brussels)
◆ EIR → EU Regulation 2015/848 ⇒ EU
● Limited to insolvency regulation
◆ Lugano Convention ⇒ EU, Iceland, Norway, Switzerland, Denmark
◆ Hague Convention on choice of Court Agreements ⇒ EU, Denmark, Singapore,
UK, USA
◆ Convention on recognition/enforcement of foreign judgements ⇒ US, Russia and
UK
Lecture #3
➔ Prorogation → parties have agreed jurisdiction regardless of their domicile (Art 25
Brussels Reg.)
◆ Doctrine of separability→jurisdiction clause is legally independent of contract
( 25(5) Brus)
● Choice of court may be governed by other law than the rest of the contract
◆ Non-EU parties must decide jurisdiction on own International Private Law
◆ Parties can choose alternative fora → Not possible under the Hague
Conference
◆ CJEU SIL/Agora Choice must be precise enough and a court of a MS
➔ Substantive Law (Rome 1 Reg.)
◆ EU Instrument on applicable law
● Contract → Rome 1 Reg
● Tort → Rome II Reg
● Property → national law & Collateral Directive
● Insolvency → EIR & Winding-up Directive
◆ Rome 1
