Introduction to Polish Private International Law 5th Classes Dr. Mateusz Pilich

Chair of Int’l Private and Trade Law, University of Warsaw

Public Policy Exception (

ordre public

)

Function and Purpose

     Article 7 PILA: A foreign law shall not apply, if its application would lead to effects incompatible with the fundamental principles of law of the Republic of Poland.

Article 21 Rome I: The application of a provision of the law of any country specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.

Why it is called an "exception" of ordre public ?

„Roots" and foundations, principles which determine the country’s self-

identity

Expressed in several provisions of fundamental laws (quite often widely scattered):    Constitution of Poland International treaties (esp. human rights conventions) Codes (Civil Code, Family Code, Criminal Code)

Case Studies

   Case Study No. 1:  A national of an Arabic country wants to marry a women of Polish nationality. Both are single, yet according to the man's national law he could have even 4 wives, provided that those previously married give their consent (SC resolution 22/06/1972, III CZP 34/72).

Case Study No. 2:  Polish civil court adjudicates on the damages for the defamation in a press article. The injured American claims for $250,000 of actual damages and $2,000,000 as "punitive damages" (see SC decision 11/10/2013, I CSK 697/12 ).

Case Study No. 3:  Two Syrian Catholic Christians submit a claim for the divorce by mutual consent. According to their common personal law (the Canon law of the Eastern Churches), the divorce is not possible. Should the court find for them relying on the public policy exception?

Case Study No. 1

     The principle of monogamy is a fundament of social order in Poland (as well as the Western culture as a whole) The Supreme Court's mistake: to oblige the trial court to scrutinize the foreigner's ability to marry taking into account the difference between the future legal status of the Polish wife after the possible marriage Simple differences between the Polish and foreign substantive law do not suffice The effect of application of foreign law in a given case matters Simple possibility of the poligamy is too weak to justify the exception – no room for the public policy of the forum

Case Study No. 2

   

"Punitive damages"

between defamation laws of the civil law and common law countries – a never-ending story of divergencies Functions of the punitive damages: to punish the defendant for his or her outrageous conduct, to deter him or her and others from doing the same in future Sum of money not corresponding to the actual detriment, personal or pecuniary Supreme Court found it principally impossible to find for the plaintiff due to the principle of proportionality (certain relation of money claim to the violated interest)

Case Study No. 3

   Divorce – a problematic legal institution   Article 18 of the Constitution: principle of the family and marriage protecton, no internationally recognized principle of dissolubility of marriage (such a principle may be accepted by particular legal systems) – see Article 8 of the 1970 Hague Convention on the Recognition of Divorces and Separations The principle of the individual liberty (Article 31(1) of the Consitution) Which of these principles should prevail?

The

'positive' effect

of the public policy exception: the foreign law fully substituted by the domestic one

Law Evasion (

fraus legis

)

Function and Purpose

    A "unicorn" of the private international law (often discussed, hardly ever seen) A deliberate act of the party (or parties), who want to receive more that thay would have received had a given law been applied Parties’ manipulations concerning the point of connection French Princesse de Bauffremont  case (1878): A French separated aristocrat intended to re-marry a foreigner    Divorce then forbidden in France, hence an escape in the form of naturalization in a small German principality – German separated catholics treated as divorced by law Under the new personal law, she could re-marry in Berlin In France, courts found against Mrs de Bauffremont holding she had been still married  Denial of the recognition as to the change of the connecting factor

Hidden Issue of the PIL

    Procedural issues play a predominant role Forum shopping – sometimes forum deliberately chosen in order to make the court adjudicate under the law which best 'fits' the plaintiff's needs and expectations Negative labeling of the forum shopping, from such practices (mostly ineffective) trials of preventing parties Weak points of the theory of the law evasion    Rarely possible to prove the 'bad faith' of the parties If the court has a non-exclusive jurisdiction and there is a foreign judgment, it seems hard to contest recognition and enforcement of the latter The merits of the foreign judgment basically are not subject to judicial scrutiny in Poland (prohibition of révision au fond )

Application of Foreign Law

Scope of the Polish Courts' Duties and Obligations

    How do the courts proceed with foreign laws in your countries?

Obligatory character of the Polish conflict law rules (remarks on the German concept of the "fakultatives Kollisionsrecht" ) Application of a foreign law: not the 'fact' but just the 'law' Ex officio applying of the foreign applicable law ( Article 1143 (1) Code of Civil Procedure)    The party is not obliged to request the application of the foreign law The court has to take it into consideration at any stage of proceedings (even on appeal) Court's errors in (mis)applying a foreign law are appealable and also (which is not so obvious in many Western countries) subject to the revision by the Supreme Court

Selected General Principles

    Foreign law is still the law, not the „fact” of the case A limited scope of the principle the law")

jura novit curia

("A court knows The content of the law has to be proved by the court (irrespective of the parties' motions or contentions) The means used:    The information on the content of the foreign law and legal practice – furnished by the Ministry of Justice) Convenience of the system created by the Council of Europe according to the 1986 London Convention on Information on Foreign Law Expert witnesses in the field of foreign law (Article 1143(3) CCP)

Emergency Rules of the Choice of Law

  Article 3(1) PILA: If this act provides for the applicability of the law of nationality and it is not possible to establish is not possible to establish residence will be applied. […] the nationality of a given person, or if he or she does not have the nationality of any state, or it the content of the law of nationality otherwise, the law of the state in which he or she has habitual , then the law of the state in which the given person is domiciled shall apply; Article 10 PILA: (1) If it is applies. (2) If it is not possible to establish the circumstances upon which the application of the foreign law depends , the law of the state with which the legal relationship has the closest connection not possible to ascertain the content of the foreign law within a reasonable time, Polish law applies.

Thanks for your attention!