Private International Law Sciences Po Paris Spring 2017

1. Private International LawSciences Po ParisSpring 2017 The PIL Method Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University

2. Which conflict rules? • A company registered in Germany has its main seat in the USA. A dispute arises about the validity of a decision by the Board of Directors. • According to German PIL, matters of company law have to be decided according to the company law of the country where the main seat is located. • According to USA PIL, matters of company law have to be decided according to the company law of the country where the company is registered.

3. Choice of law assumes choice of forum • A court always applies its own PIL • Choice of forum is starting point • How do you identify the forum? • Civil Procedure of the court • Harmonising Conventions/Regulations • Brussels I • Hague Convention on Choice of Court Agreements

4. How do conflict rules work? • A conflict rule determines • Which country’s courts have jurisdiction • E.g. art. 4 Brussels I: […]persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State • Which country’s law is applicable • E.g. Art 4 Rome II: [..] the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs […] Connecting factor

5. How do you apply conflict rules? • Each conflict rule has its connecting factor • Each conflict rule applies to a specific area of law • To find the right conflict rule, the claim needs to be qualified as belonging to a certain area of law • E.g. Art 7(1) Brussels I: A person […] may be sued in another Member State: (1) (a) in matters relating to a contract, […], (2) in matters relating to tort, […] Qualification/Classification/Characterization

6. “The qualification problem” • Limitation of actions (prescription) is considered to be • a matter of substantive law in civil law jurisdictions • a matter of procedural in common law jurisdictions • Connecting factor for substantive law (lex causae) depends on the area of law • Contracts: the habitual residence of the seller • Torts: the place where the damage arose • Connecting factor for procedural law is the place of the court (lex fori)

7. Which qualification shall be applied by the court? • Lex causae: How can you identify the cause before you have qualified the claim? • Lex fori: Qualification as a specification of the scope of application of the conflict rule

8. Cont. • The substantive law applicable under Rome I and Rome II shall govern in particular: • Prescription and limitation (Article 12 d) Rome I, Article 15 h) Rome II)

9. Claims that do not match a legal category in the lexfori • Norwegian Supreme Court (Rt.1995 s.1415) and Joint Account • Supreme Court qualified according to lexfori • Joint account is not a known category under Norwegian law

10. Cont. • Couple marries and lives in Norway • Moves to USA, establishes joint account • Joint account: upon the death of one of the holders, the ownership of the account goes to the surviving joint account holder. Account is not part of the estate • Husband dies, his heirs claim part of joint account

11. Cont. • Court qualified as matrimonial matter • Conflict rule for matrimonial matters: the law of the first common domicile • Norwegian law • The account is part of the estate • Joint account’s function: property • Conflict rule for property law: lex rei sitae (where the property is situated) • US law • The account is not part of the state

12. Qualification and connecting factors • Qualification is necessary to apply general conflict rules based on connecting factors • Qualification is not necessary if discretionary methods are applied

13. Criticism against qualification • Complicated, conceptual • But: • Do not all legal rules provide a solution based on what is assumed to be the best regulation for that kind of legal relationships? • Are not all legal rules applied by determining whether a certain set of facts falls within the scope of a certain rule?

14. Criticism against formulation • PIL defines the generally recognised legal method as “qualification” • PIL uses difficult, latin formulations • Yes, but: • Thanks to this specific formulation, the method is uniformly understandable across jurisdictions • Thanks to the latin expressions, there are few misunderstandings across jurisdictions

15. Closest Connection • Instead of connecting factor in the individualising method • As an exception to the connecting factor

16. Closest Connection- From Rome Convention... • Art. 4.1 Lacking parties’ choice: closest connection • Art. 4.2 Presumption: • Habitual residence/place of business • Characteristic performance • Art. 4.5 Exception: • Characteristic performance cannot be determined • «It appears from the circumstances as a whole that the contract is more closely connected with another country»

17. Closest Connection –… to Rome I • Art. 4.1 (a)-(h): defined conflict rule for contract types • Art. 4.2: Other contract types: residence of characteristic debtor (main place of business) • Art. 4.4: if cannot be determined: closest connection • Art. 4.3: »Where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2»

18. Renvoi • A company registered in Germany has its main seat in the USA. A dispute arises about the validity of a decision by the Board of Directors. • According to German PIL, matters of company law have to be decided according to the company law of the country where the main seat is located. • According to USA PIL, matters of company law have to be decided according to the company law of the country where the company is registered.

19. Scope of conflict rules • Do conflict rules point at the substantive rules of the indicated law? • US company law • Do conflict rules point at the whole indicated law, including its conflict rules? • US conflict rules, that point at German law (PIL or substantive?)

20. Renvoi is excluded • Art. 20 Rome I, Art. 24 Rome II • The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law. • Art. 28 UNCITRAL Model Law on International Commercial Arbitration • Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules.

21. Renvoi is not excluded • Company law • Family law • Succession law