Notes – Conflict of Laws
Maud van Deijne – Semester 2 Year 2
Week 1
Lecture 1 – 31/1
Structure of the Course
Assessment
Assignment – Moot trial submissions: 30% of final grade
- Groups of 3
- Submit a statement of claim or of defence (no oral session) to a practical
case dealing with Blocks 1-3. For COL , your submission (statement of
claim or statement of defence) will be evaluated on your private
international law argumentation
Written Exam – 70% of final grade (minimum of 5.5)
- TestVision
- If you don’t get a 5.5, you have to resit (this resit is then 100% of the
course)
- Include matters from all blocks: jurisdiction, tortious liability, contractual
liability, recognition and enforcement
Introduction to Procedural Law
Focuses on technical aspects: “designed to define, assign and enforce rights
in the domestic courtroom” (Zekoll, 2019)
A domestic court always applies its own procedural rules (the way the court
functions, the way the parties have to submit documents, the rights that they
have, etc.) different to substantive law, as this can be dependent on a lot of
factors the procedural law a court applies always stays the same
Factors relevant for procedural law
- Parties rights & duties
- Division & competence of courts
- Pre-trial
- Role of actors
- Appeal
- Timeframe
, - Service of documents
- Procedural steps
- Enforcement
- Evidence
Outline
Different approaches (inquisitorial or adversarial) but some common shared
values/principles: public trials, the independence and impartiality of courts, the
procedural equality of the parties, the right to be heard
Courts always apply their own national procedural law matter of sovereignty
Guarantee to protect & enforce substantive rights
Harmonisation of some of the procedural rules in cross-border disputes in
Europe art. 81 TFEU
What is Private International Law (PIL/Conflict of Laws/Internatioaal Proces Recht)?
Also known as Conflict of Laws (especially in common law countries)
Regulates private law relations or disputes with an international element
Private: family, civil & commercial law cases (natural, legal persons or state
authority acting as private person)
International: international element, eg
- Parties domiciled/habitually resident in different countries
- Relevant legal act in another country (marriage, divorce, tort, contract
performance)
- Service of documents, taking of evidence, enforcement of judgment in
another country
Law: national law – conventions – EU-regulations
Example: Questions of PIL
Jurisdiction
- Dutch feynoord football supporters went to Rome and damaged a lot of the
city centre
- Public International Law public place/good such as historical fountain
- Private International Law shops damaged in the area
Example 2
- Not functioning good – purchaser from France wants to return it, but Dutch
company doesn’t want to take it back
- Private International Law what is the applicable law?
Recognition and enforcement
- Decision of Spanish court enforced in Poland
Main questions of PIL – Course
Jurisdiction/competence of the court
Applicable law/choice of law
Recognition and enforcement
Additional questions:
- Service of documents
- Taking of Evidence
- European uniform procedures (European Enforcement Order, European
Order for Payment, European Small Claims Procedure, European Account
Preservation Order)
, - Legal Aid
- Administrative Cooperation
Part II – Terminology
Jurisdiction: ‘forum’
- Forum delicti (tort)
- Forum rei sitae (property)
- choice of court clause
Applicable law: ‘lex’
- Lex loci delicti
- Lex rei sitae
- Choice of law clause
Sources of PIL
PIL: the I(nternational) element & National Law!
all countries have these elements:
Jurisdiction
Applicable law
Recognition and enforcement
Additional questions
Other sources of PIL
1. EU instruments (mostly Regulations)
2. International instruments (mostly conventions)
- Hague Conference of Private International Law
- Regional: Mercosur, OAS
- Bilateral
3. National sources
- Statutes (eg Book 10 Dutch Civil Code)
- Unwritten law
- Principles and custom (eg restatement)
in this order: first look for EU instruments, if not applicable/existent then
international instruments, and if those are not applicable/existent then you look for
national sources
Sources: Scope of Instruments
Material/Substantive Scope
- Scope in subject
Formal/Geographical Scope
- Scope in space
Temporal Scope
- Scope in time
What if multiple instruments apply?
if multiple international instruments are applicable, then a problem of concurrence
occurs
International vs national national rules, eg art 93/94 Dutch Constitution
Convention vs EU Regulation in instrument itself
Convention vs Convention Vienna Convention of Conventions 1969
, Methodology
1. International facts
2. Characterisation
3. PIL Question
4. Sources
5. Scope
6. Concurrence (more than one piece of legislation is potentially applicable,
because multiple scopes are satisfied)
7. Application
can use this methodology when drafting answers, as it can help you come to a
conclusion step by step
IN CLASS - GENERAL
We have to use the 8 step methodology
Step 1 – Do you have international facts?
o Indicate whether or not there are facts that make this scenario an international
issue
Step 2 – Characterisation
o Whether they already had a contract or was it non-contractual?
Step 3 – the PIL question
o With which question are we concerned with
o 3 main ones
Jurisdiction
Applicable law
Recognition and enforcement
Step 4 – sources
o The sources have to be identified
o Brussels I regulation
o Hague Convention
o Rome I or II
o National/ domestic law
Step 5 – scope
o Elements that make up scope
Substantive/ Material
Territorial
Temporal
Step 6 – concurrence
o When we have two instruments that potentially apply
Step 7 – application
o It is the most IMPORTANT
o Here there should be the most analysis
o Which of the rules within the regulation we have to look at?
Step 8 – conclusion
o Answer the question that was asked based on the analysis you did
Week 2
Lecture 2: International Jurisdiction: Exclusive Jurisdiction & Choice of Court – 7/2
Maud van Deijne – Semester 2 Year 2
Week 1
Lecture 1 – 31/1
Structure of the Course
Assessment
Assignment – Moot trial submissions: 30% of final grade
- Groups of 3
- Submit a statement of claim or of defence (no oral session) to a practical
case dealing with Blocks 1-3. For COL , your submission (statement of
claim or statement of defence) will be evaluated on your private
international law argumentation
Written Exam – 70% of final grade (minimum of 5.5)
- TestVision
- If you don’t get a 5.5, you have to resit (this resit is then 100% of the
course)
- Include matters from all blocks: jurisdiction, tortious liability, contractual
liability, recognition and enforcement
Introduction to Procedural Law
Focuses on technical aspects: “designed to define, assign and enforce rights
in the domestic courtroom” (Zekoll, 2019)
A domestic court always applies its own procedural rules (the way the court
functions, the way the parties have to submit documents, the rights that they
have, etc.) different to substantive law, as this can be dependent on a lot of
factors the procedural law a court applies always stays the same
Factors relevant for procedural law
- Parties rights & duties
- Division & competence of courts
- Pre-trial
- Role of actors
- Appeal
- Timeframe
, - Service of documents
- Procedural steps
- Enforcement
- Evidence
Outline
Different approaches (inquisitorial or adversarial) but some common shared
values/principles: public trials, the independence and impartiality of courts, the
procedural equality of the parties, the right to be heard
Courts always apply their own national procedural law matter of sovereignty
Guarantee to protect & enforce substantive rights
Harmonisation of some of the procedural rules in cross-border disputes in
Europe art. 81 TFEU
What is Private International Law (PIL/Conflict of Laws/Internatioaal Proces Recht)?
Also known as Conflict of Laws (especially in common law countries)
Regulates private law relations or disputes with an international element
Private: family, civil & commercial law cases (natural, legal persons or state
authority acting as private person)
International: international element, eg
- Parties domiciled/habitually resident in different countries
- Relevant legal act in another country (marriage, divorce, tort, contract
performance)
- Service of documents, taking of evidence, enforcement of judgment in
another country
Law: national law – conventions – EU-regulations
Example: Questions of PIL
Jurisdiction
- Dutch feynoord football supporters went to Rome and damaged a lot of the
city centre
- Public International Law public place/good such as historical fountain
- Private International Law shops damaged in the area
Example 2
- Not functioning good – purchaser from France wants to return it, but Dutch
company doesn’t want to take it back
- Private International Law what is the applicable law?
Recognition and enforcement
- Decision of Spanish court enforced in Poland
Main questions of PIL – Course
Jurisdiction/competence of the court
Applicable law/choice of law
Recognition and enforcement
Additional questions:
- Service of documents
- Taking of Evidence
- European uniform procedures (European Enforcement Order, European
Order for Payment, European Small Claims Procedure, European Account
Preservation Order)
, - Legal Aid
- Administrative Cooperation
Part II – Terminology
Jurisdiction: ‘forum’
- Forum delicti (tort)
- Forum rei sitae (property)
- choice of court clause
Applicable law: ‘lex’
- Lex loci delicti
- Lex rei sitae
- Choice of law clause
Sources of PIL
PIL: the I(nternational) element & National Law!
all countries have these elements:
Jurisdiction
Applicable law
Recognition and enforcement
Additional questions
Other sources of PIL
1. EU instruments (mostly Regulations)
2. International instruments (mostly conventions)
- Hague Conference of Private International Law
- Regional: Mercosur, OAS
- Bilateral
3. National sources
- Statutes (eg Book 10 Dutch Civil Code)
- Unwritten law
- Principles and custom (eg restatement)
in this order: first look for EU instruments, if not applicable/existent then
international instruments, and if those are not applicable/existent then you look for
national sources
Sources: Scope of Instruments
Material/Substantive Scope
- Scope in subject
Formal/Geographical Scope
- Scope in space
Temporal Scope
- Scope in time
What if multiple instruments apply?
if multiple international instruments are applicable, then a problem of concurrence
occurs
International vs national national rules, eg art 93/94 Dutch Constitution
Convention vs EU Regulation in instrument itself
Convention vs Convention Vienna Convention of Conventions 1969
, Methodology
1. International facts
2. Characterisation
3. PIL Question
4. Sources
5. Scope
6. Concurrence (more than one piece of legislation is potentially applicable,
because multiple scopes are satisfied)
7. Application
can use this methodology when drafting answers, as it can help you come to a
conclusion step by step
IN CLASS - GENERAL
We have to use the 8 step methodology
Step 1 – Do you have international facts?
o Indicate whether or not there are facts that make this scenario an international
issue
Step 2 – Characterisation
o Whether they already had a contract or was it non-contractual?
Step 3 – the PIL question
o With which question are we concerned with
o 3 main ones
Jurisdiction
Applicable law
Recognition and enforcement
Step 4 – sources
o The sources have to be identified
o Brussels I regulation
o Hague Convention
o Rome I or II
o National/ domestic law
Step 5 – scope
o Elements that make up scope
Substantive/ Material
Territorial
Temporal
Step 6 – concurrence
o When we have two instruments that potentially apply
Step 7 – application
o It is the most IMPORTANT
o Here there should be the most analysis
o Which of the rules within the regulation we have to look at?
Step 8 – conclusion
o Answer the question that was asked based on the analysis you did
Week 2
Lecture 2: International Jurisdiction: Exclusive Jurisdiction & Choice of Court – 7/2
