Private International Law Rules Research Articles

Codification of European Private International Law!

Codification of European Private International Law!

The limitations of Private International Law regarding the protection of unaccompanied migrant children in the European Union


 This article aims to explore whether the rules of Private International Law (PIL) effectively safeguard the parental responsibility and protection of children, specifically addressing the protection of unaccompanied children migrating to the European Union (EU). The objective is to enhance the protection of the best interests of these minors. The study employs the inductive method, starting with the analysis of specific legislation and jurisprudence to derive a general premise as a conclusion. The research methodology involves bibliographic and documentary research. The findings reveal that, from a practical standpoint, PIL has limitations in its application, failing to fulfill its role in protecting the best interests of unaccompanied children in the EU.
 

News from the Hague Conference on Private International Law (HCCH)

Abstract Over the past year, the HCCH, supported by its Permanent Bureau (PB), has continued its work for the progressive unification of the rules of private international law (PIL). This annual contribution to the Uniform Law Review provides an overview of the activities of the HCCH from 1 December 2022 to 30 November 2023, and anticipates some upcoming events, encompassing the HCCH’s three main areas of work: international family and child protection law, transnational litigation and Apostille, and international commercial, digital, and financial law.

CURRENT TRENDS OF THE JURISDICTIONAL IMMUNITY DEVELOPMENT OF A FOREIGN STATE UNDER THE LAWS OF THE UNITED STATES OF AMERICA

The article examines the current trends in legal regulation of relations on granting jurisdictional immunity to a foreign state in the legal systems on the example of the United States of America. The author identifies the main principles of development of this institution, their reflection in the rules of law, and emphasizes the existence of problems associated with the application of state immunity in private law relations. The author substantiates the expediency of analyzing the most optimal legal positions reflected in US law and tested in international practice. The role of judicial practice in this process is shown. The article analyzes the origins of limited immunity in the United States and emphasizes the need to improve legislation and unify the rules of private international law in this area.

Tacit Choice of Law in International Commercial Contracts. An Analysis of Future Instruments of Developmental Organisations

This article examines the various regional and supranational organisations of emerging countries that could benefit from a codification of private international law rules. They include the Organisation for the Harmonisation of Business Law in Africa (OHADA), the African Union (AU) and the Association of Southeast Asian Nations (ASEAN). In addition, the article analyses the envisaged instruments that may be especially relevant in the context of the abovementioned organisations. These include the Preliminary Draft Uniform Act on the Law of Obligations in the OHADA Region, the proposed African Principles on the Law Applicable to International Commercial Contracts and the Asian Principles of Private International Law. More specifically, the article focusses on the provisions regarding the determination of the law applicable, particularly those rules relating to a tacit choice of law in international commercial contracts.

European Certificate of Parenthood: aspects on the proposal for recognition of parenthood of same-sex couples in the European Union

This article addresses the difficulties of same-sex families in terms of regulations and rules of private international law, especially regarding the conditions for recognition of parenthood in relation to their children and, consequently, the implications on the nationality and free movement of these children and adolescents. For the elaboration of the research, the bibliographical exploratory methodology was adopted, with the objective of analyzing what and if there are currently rules that have the power to regulate such issues, so that a European Certificate of Parenting could supply the lack of them and guarantee the application of fundamental rights to rainbow families. For this, a case study was presented through jurisprudential analysis, in addition to other paradigm decisions regarding the theme, directives and treaties. Finally, the results obtained indicate that the existence of a European Certificate of Parenthood is fundamental to guarantee decent conditions for same-sex families.

Entrepreneurial aspects of the EU Succession Regulation

This article investigates entrepreneurial aspects of succession law under the EU Succession Regulation. The subject area of entrepreneurial succession takes on a new dimension in a cross-border context. It is now the rule that there is at least one foreign connection within an entrepreneurial family: this may be the case due to a foreign nationality, a foreign habitual residence of the entrepreneur or the existence of company assets abroad, etc. Consequently, the entire process of business succession is strongly influenced by rules of private international law and must be viewed from a new – namely international – standpoint. Each EU Member State has its own conflict of law rules with regard to succession law, which provides an answer to the question of which law should be applied when there is an interference with other legal systems. For the territory of the EU, there has been an EU-wide inheritance law since August 2015 that answers this question – the so – called EU Succession Regulation, which also applies to entrepreneurs in their legal status as natural persons. Despite the fact that company law is explicitly excluded from the scope of application of the EU Succession Regulation, its interfaces with company law are of great practical relevance for the succession of the deceased entrepreneur. The aim of this article is to highlight the various legal aspects of the business succession under the EU Succession Regulation and distinguish them from the rules of private international law.

News from the Hague Conference on Private International Law (HCCH)

Abstract Over the past year, the HCCH, supported by its Permanent Bureau, has continued its work for the progressive unification of the rules of private international law (PIL). This annual contribution to the Uniform Law Review provides an overview of the activities of the HCCH from 1 November 2021 to 30 November 2022 and anticipates some upcoming events, encompassing the HCCH’s three main areas of work: international family and child protection law, transnational litigation and apostille, and international commercial, digital, and financial law.

Overriding Mandatory Rules Applicable to International Sales of Goods: Evidence from South Africa

In private international law of contract, the law regulating the rights and obligations of contracting parties may (whether objectively determined or chosen by the parties), in some instances, be limited by either public policy considerations or other relevant mandatory rules. In this regard, the public policy and the overriding mandatory rules of three places – that of the forum state, the applicable law (if different from the lex fori) and the law of the place of performance (or a third state with relevant connection to the contract) – have been considered by both jurists and scholars as being important. However, this article is limited to matters concerning choice of law rules on overriding mandatory provisions (but not public policy considerations). This article assesses the various private international law rules utilised by the South African courts in ascertaining which overriding mandatory provisions must apply to international contracts for the sale of goods. The aim is to adopt a general private international law of contract rule that effectively addresses the difficulty in determining the state, whose overriding mandatory provisions may legitimately claim application over certain relevant issues in international sales contracts. To this end, the article considers the general application of the overriding mandatory rules of the forum and that of the applicable law state (lex causae) to determine if these laws may legitimately by applied to contracts as it is practiced by some courts. Thereafter, the article considers the application of the overriding mandatory rules of the place of performance (locus solutionis) or other relevant third states and demonstrate that it is the overriding mandatory provisions of “a relevant state” that may legitimately derogate the application of certain provisions of the proper law of an international contract.

Liability for damages caused by artificial intelligence systems – main challenges to be addressed by the European Union conflict-of-laws regulations

This article discusses the main challenges related to the liability for damages caused by artificial intelligence (AI) systems that need to be properly addressed by the European Union (EU) conflict-of-laws regime. In the first part of the paper authors point out three main challenges, namely: 1) determination of responsible persons, 2) optimal liability regime for AI torts, and 3) determination of high – risk AI systems. In the second part of the paper the authors assess the application of the conflict-of-law provisions of the Rome II Regulation from this perspective. This article argues that a harmonised legal framework at EU level is necessary to avoid the risk of legal fragmentation in filling the gaps created by unprecedented technological advances caused by AI. This objective should also be pursued by the conflict-of-laws rules of private international law.

Pravne i etičke dileme kod surogat materinstva u međunarodnom privatnom pravu

The coming time and the growing presence of surrogate motherhood brings new legal, bioethical and moral dilemmas in biomedically assisted fertilization and birth for another. Does man as a subject of law and his dignity reject the possibility of legalizing experimentation and exsploatation as well as mans destructionor it takes place with the aim of improving mans life and himself as a supreme good and modern achievement. In the legal systems of the countries, there are different legal regulations, due to which there is a need to determine the applicable law that would solve the issue of surrogate motherhood, which mother is considered the mother of the child, genetic or gestational. The rules of national private international law should answer this question using not only analogy and extensive interpretation, but also the creation of a special conflict norm to build a new relationship. The countries of the world legally regulate gestational surrogacy in very different ways. Biomedicine has an advantage over the legal regulation of relationship arising from surrogate motherhood. Legal regulations lags behind development, opportunities and what is happening in the field of biomedicine. The is way surrogate motherhood remains unregulated in many countries, often prohibited and only sometimes only allowed and legally regulated.

The Law Applicable to Tortious Liability: a Comparative Analysis of Article 4 of The Rome II Regulation and Private International Law in Ghana

The law applicable to tortious liability involving a foreign element has become one of the most vexed questions in private international law. This can be attributed to technological advancements and the movement of people and goods across state lines. Accidents involving a foreign element are, therefore, reasonably foreseeable. Torts such as online defamation, accidents involving self-driving vehicles, and other technological acts involving a foreign element have heightened the possibility of cross-border torts. Considering the complexities associated with cross-border torts, the European Union (EU) has enacted the Rome II Regulation. The overarching objective of enacting the Rome II Regulation is to promote certainty and predictability when dealing with cross-border disputes, irrespective of the country of the court in which an action is brought in the EU. Conversely, Ghana relies on the broadly drafted section 54 of the Courts Act 459 of 1993 and common law principles of private international law to determine the aspects of choice of law. This has made the position in Ghana very uncertain and unpredictable due to the broad discretion given to courts under section 54 of the Courts Act, particularly in determining the law applicable to cross-border tort cases. Also, Ghanaian courts have applied the much-criticised double actionability rule to determine the rights and obligations of parties in cross-border tort cases. In light of the uncertain and unpredictable nature of Ghanaian law, some academics have suggested that Ghana adopt the traditional rule to determine the applicable law in torts. This article seeks to critically analyse the applicability of article 4 of the Rome II Regulation regarding non-contractual liabilities. The article compares how courts in EU member states have applied article 4 to determine the applicable law in torts, to how the Ghanaian courts use private international law rules to determine the applicable law in torts. The essence of the comparison is to ascertain whether Ghana can draw some legislative and judicial lessons from the position under article 4. In addition, the significance of the comparison is to determine whether the approach under the Rome II Regulation can serve as a basis for legal reforms in Ghana. Most importantly, the article explores the extent to which the legal approach under the EU law can bolster judicial certainty and predictability in Ghanaian law.

PEMAKAIAN HUKUM ASING DALAM HUKUM PERDATA INTERNASIONAL: KEWAJIBAN DAN PELAKSANAANNYA DI PENGADILAN INDONESIA

This article is reviews the application of foreign law by Indonesian courts as governed by the Indonesian Private International Law (PIL). The review is based on Acts and regulations related to PIL, case-laws, and text-books on PIL. The result demonstrates that Indonesian judges often do not implement the principle of iura novit curia in the application of foreign law; ignore foreign elements in their cases; and keep applying Indonesian law even though the rules of Indonesian PIL lead to the foreign law. Therefore, the Bill of Indonesian PIL shall be passed and enacted soon so that there are no more excuses by Indonesian courts not to apply foreign law. Indonesian courts including the Supreme Court, should have a special unit within their system that can provide judges with information on and translation of foreign law. In addition, it is necessary to establish international cooperation regarding exchange of information on foreign law between Indonesia’s Supreme Court and other countries’ Supreme Courts.

The interplay of data, consumer and Private International law rules in the area of collective access to justice in the European Union

The objectives of this essay are to address the relationship between public and private enforcement of the rights contained in the General Data Protection Regulation (GDPR) in terms of data protection representative actions; to make a general overview of Directive 2020/1828 and to analyze to what extent a systematic interpretation of the various rules of different legal disciplines that may be involved in representative actions is possible and desirable. Furthermore, this paper addresses the question whether the introduction in the GDPR of new heads of international jurisdiction is appropriate and how these relate to the classical heads of jurisdiction of Regulation 1215/2012 that may be applicable in the area of representative actions.

Recent Amendments to the Private International Law Rules On Carriage of Goods by Sea in the Belgian Shipping Code. An Uncalled-for Exercise with Unfortunate Results

Recent Amendments to the Private International Law Rules On Carriage of Goods by Sea in the Belgian Shipping Code. An Uncalled-for Exercise with Unfortunate Results

Blockchain y Derecho Internacional privado

blockchain has become one of the most relevant technologies in recent years, given the potential scope of its various applications. The intrinsically international nature of this technology makes it necessary to study its interaction with the rules of private international law that will very often come into play when using blockchain. A preliminary analysis of the issue leads to the conclusion that, although there is a certain continuity in the application of the current international private law criteria, a review of these rules is advisable in order to update and adapt them to the particularities of each of the different mechanisms derived from the blockchain, so as to increase the degree of legal certainty and promote the use and consolidation of this technology.

Matrimonial Causes & Choice of Law under Private International Law

The institution of marriage is succumbed to yield many causes giving birth to legal action arising from this single relation called ‘marriage’. From time immemorial people have been interacting across the border and hence there have been marriages between individuals crossing the territorial boundary of country. Every country has its own legal system usually different from the legal system based on distinguish cultural, religious or political identity. In this situation if a dispute out of marriage will arise wherein parties are from different legal systems, the court will have to decide about according to which particular law and legal system such conflicting situation relating to marriage would be adjudicated. Private international law is a path to guide judicial courts encountering such situations and this paper is all about how judges have to exercise jurisdiction and private international law and further according to which set of law/s such matrimonial disputes/causes should be addressed.
 Person having different domicile, residence or nationality may enter into matrimonial relationship. At the time of marriage no one speculate any matrimonial dispute but emotion, relation and compatibility between emotion and relation is quite different things. Therefore, there is always risk/chance of fractions in every marriage. If parties to marriage are from the same legal system, then their dispute will be adjudicated according to their local substantive and procedural laws of their land. But, if such parties to marriage belong from different legal systems and further if they have married away from their own place viz. a third country, then the jurisdiction and the law to be applied in matrimonial disputes would be looked from the lenses of the private international law.
 Thereafter these relations can also culminate into matrimonial disputes which take its legal effect through various matrimonial causes. This research paper mainly aims to analyse the various matrimonial causes present in a matrimonial dispute involving a foreign element which shall come under private international law and various choices oflaw rules, with special emphasis on nullity of marriage. This paper shall also briefly discuss the concept and validity of marriage. This paper shall analyse the concept of matrimonial causes in conflict of law through the Indian perspective. As India is a common law country which is of a shared British heritage and developed in England so the various concepts as aforementioned shall also include comparison with the English law. This paper shall conclude with authors’ observations and suggestions.

Transgraniczne przekształcenia (zmiana formy prawnej) spółek w prawie prywatnym międzynarodowym — zagadnienia wybrane

This paper delas with the selected issues of cross-border conversions of companies in private international law. Conversion is one of the forms of transformations of companies. The basic form of cross-border transformations mostly used by companies are mergers. However, as evidenced in particular by the judgment of the Court of Justice in the case of Polbud, also the change of the legal form is an institution of interest and present in the practice of cross-border activities of companies. In the foreground are the conflict of laws issues arising under private international law, in particular the question of the law applicable to the cross-border change of the company’s legal form. In order to answer this question, a definition of a conversion under the private international law has been provided. A cross-border conversion of a company must be distinguished from a cross-border transfer of the seat of the company as a connecting factor, as they are two completely different operations governed by different conflict-of-law rules of private international law. In the case of Polbud, there are serious doubts as to whether there was a cross-border conversion or cross-border transfer of the company’s seat. The law applicable to cross-border conversions is determined on the basis of the principle of combination or unification of the personal statutes of the state of the exit form and the state of the intended form of the company. Under this principle, however, the application of both legal systems is problematic. Useful guidelines are provided by the model expressed in art. 86c in connection with art. 86q of the directive on certain aspects of company law. The scope of application of the law applicable to cross-border conversions is determined by both leges societatis in question. Cross-border conversion operations also arise qualification problems related to issues such as the protection of creditors, minority shareholders and employees. The harmonized substantive provisions of the directive on certain aspects of company law make it easier to carry out cross-border conversions in the European dimension. The existence of such harmonized norms removes the barriers resulting from the applicable substantive law based on various principles and rules and makes the conflict-of-law issues then practically of secondary importance.

Heredamiento – umowa dziedziczenia czy hybryda umowy prawa spadkowego i rodzinnego

This article addresses the issues related to heredamiento - an agreement as to succession, characteristic of the Catalan legal system (Spain), the centuries-long functioning of which may be an inspiration for other legislators. The paper first attempts to locate this institution in the context of history and terminology. Further, it explains and describes the functioning of heredamiento in the provisions of Catalan law currently in force. The article then discusses the centuries-old location of this institution at the junction of succession law and family law. The paper also presents issues relating to the conflict of laws rules of private international law and the conflict of law rules of interregional law that are characteristic of the Spanish legal system. Therefore, introducing the reader to the institution of heredamiento, the author suggests that the Polish legislator should not cease looking for legal instruments adjusted and adapted to social realities, which would adequately protect the interests of both future decedents and heirs.

Private International Law Rules Regarding Personal Status in Colombia: a System in Need of an Overhaul

This article contains the findings of a research aimed at studying the Colombian private international law rules regarding the status of individuals and foreign commercial companies. Such rules are basically found in Colombia’s Civil and Commercial Codes. The research also considered the existing rules in other Latin American countries. In this sense, the research methodology consisted of systematically locating and organizing the rules on this subject that are in force in the legal system of Colombia and in those of other countries in the region, and then proceeding to a general comparative analysis. The overview offered by the article allows the identification of some weaknesses of Colombian private international law. Based on this, it is concluded that it is necessary to review the Colombian rules that regulate the law applicable to the personal status of both individuals and foreign commercial companies.