Summary Private international law

TIPS examen PIL
-Studentencursus leren

-Wetgeving + cases aanduiden

-Eerste blauwe pagina als inhoudstafel

-OEFENINGEN MAKEN => EXAMEN LUKT (heel goed arresten leren die nodig zijn voor oefeningen) =>
schema overlopen en zo oefeningen GESTRUCTUREERD maken

-Open vraag (tweede deel) is heel breed en vaag => maar de CLUE is: internationaal recht heeft eigen
concepten die je moet invullen op een andere manier en niet op een nationale manier
- Bij het open boek deel moet je de principes die je leert in de eerste 5 lessen betrekken, dan
scoor je al veel punten.
- Teksten blog => komt terug in open vraag

-Het examen valt echt goed mee dus laat je niet bang maken door anderen!

-Exam:
• Part 1: application
o Only statute book allowed
o Attention: you can sue in more than one place => name every place, otherwise 0 points
• Part 2: essay
o Open book: statutes book, case reader and handbook allowed
o Structure the answer, highlight key words => otherwise 0 points




-In the exam in part I, we absolutely avoid any legal room, right? So, in the exam part I, there is one
answer and one answer only




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,Private international law
1. Part I: a bird’s eye view
A. The concept of PIL
a. International
-Deals with issues arising in cross-border civil / commercial legal relationships
 PIL allows you to go to courts you didn’t think you could litigate in => you can use the laws of
other states
 PIL as a help, eg. avoidance of the starriness of a countries’ laws (like the numerus clausus in
Belgian real estate law)

-From the moment that there is an international element in the case, it becomes a question of PIL
 Classes are limited to the core approach of PIL => civil and commercial litigation

b. Private
-PIL is
 Private => private relationships: between natural persons or between natural persons and
corporations
 International
 Law

B. Sources of private international law
-Patchwork of sources (international, regional, national, soft law…)
 International level => the Hague treaties from The Hague Conference on PIL
 Regional level => EU Member state: point of reference will be European PIL
o These rules will take precedence over national law
o Sometimes influenced by international treaties, particularly The Hague Treaties on PIL
o Legal basis: art. 81 TFEU => the EU may adopt legislation on judicial cooperation
 National level = residual PIL
o Issues that are not covered by EU-rules or other international treaties signed by the State
 Soft law

-The sources we will be discussing the most are
 Brussels Ia regulation => jurisdiction on civil and commercial matters
 Rome I regulation => applicable law for contracts
 Rome II regulation => non-contractual obligations
 Insolvency regulation => international restructuring

 Legal basis for all of this is in art. 81 TFEU: the European Union may adopt legislation on judicial
cooperation (jurisdiction, applicable law, recognition and enforcement)

-Many other regulations
 Brussels IIa regulation => parental responsibility and maintenance
 Rome III regulation => divorce applications
 Maintenance regulation
 Succession regulation => jurisdiction and laws applicable to international succession

-Wide variety of Hague Treaties
 Conventions of the Hague convention of PIL (HCCH)
 Intergovernmental organization that tries to harmonize the approach of the community of states
on issues of private international law issues by using treaties
o Not an international organization
 Once adopted, states can become a member to the convention
o You do not have to accept every treaty that comes out of it

-Lugano Convention




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,C. The 3 processes of PIL




3

, a. The 3 processes => what questions PIL deals with
-Which court has jurisdiction to hear a case? => forum = jurisdiction

-Which law applies? => lex causae = applicable law

-What is the effect of a judgment in a foreign country? => recognition and enforcement

!!! Second question does not necessarily follow the first question
 Eg. not because your case is heard in a Belgian court that the Belgian judge will necessarily
apply Belgian law
 But when they do => Gleichlauf law
o Gleichlauf = the forum applies its own law (eg. Belgian judge applies Belgian law)
o BUT that is very often not the case => we have to kick this intuition

!!! Third question is crucial
 Eg. when an Indian family comes to a Belgian lawyer => intuition of the Belgian lawyer is to
reach a Belgian court and have the judges apply Belgian law => the lawyer does not help his clients,
because the Belgian judgment will be useless in practice, because India is very reluctant to accept
judgements from non-commenwealth countries

b. Tour d’horizon with some illustrating cases
-Libel tourism (smaadtoerisme) = taking advantage of the legal system of a foreign country where it is
easier for you to file a libel lawsuit (aanklacht voor smaad) against a writer or journalist for publishing
serious criticisms of or accusations against you

-SLAPP = strategic lawsuit against public participation

David Beckham
-Facts of David Beckham’s case: there was a woman who suggested that she had been sleeping with
Beckham on various occasions in various hotels in the United States. Beckham could immediately show
that this was complete nonsense because on the alleged nights of the alleged affair, he could say “well
actually I was playing 1000 miles away in Miami”

-International element
 David and Victoria Beckham were US residents with UK nationality
 Mother company of the US publisher was German
 The woman also had a European nationality

-Qualification? Libel and slander (smaad en laster)

-Where can he sue?




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