Transcript recht van de internationale handel

Main questions of ’international private law’
Questions
1. Which court has jurisdiction (in disputes of private law) ?
(see Topic 12)
2. Which law is applicable (in private law relations) (topic
of this chapter)
3. Value of foreign judgments and other documents (see
topic 12 ff. - international procedure and arbitration)
Sources
IPL rules stem from national law or from international law
Primarily national, but to some degree unified or governed
by treaties.
What is the applicable private law ?
Application of private law in transnational relationships is
determined by rules of « IPL ».
Basically 2 types of rules of IPL:
- conflict rules (national or uniform);
- substantive rules of IPL (mostly uniform rules) (often
applied only after the conflict rule)
Structure of conflict rules
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Starting point: a state will apply the law applicable by virtue of the
conflict rule even if foreign law
Unity or diversity of conflict rules ? Often harmonised (Hague
Conference, EU), but also often diverse > jurisdiction is important in
case different conflict rules lead to a different result.
Structure of the conflict rule:
- conflict category > connecting factor
- Classify the issue in a category (such as property, contract, tort, …)
- Concretisation of the connecting factor refers to the applicable law
(e.g. law chosen by the parties, law of nationality, law of residence
or seat, location of a thing, place of damage, …)
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Exceptions to conflict rules
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Exceptions to the determination of the applicable law by conflict
rules:
exception of international public order (art. 21 Rome-I-R)
treatment of « overriding mandatory » law (loi d’application
immédiate, Eingriffsnormen) (analogous to public law):
application of domestic overriding rules (always) (art. 9 (II))
application of foreign overriding rules (rare), see art. 9 (III) Rome-I-
R.: “Effect may be given to the overriding mandatory provisions of the law
of the country where the obligations arising out of the contract have to be
or have been performed, in so far as those overriding mandatory provisions
render the performance of the contract unlawful” (comp. Art. 16 Hague
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Convention on Agency)
definition & criteria of overriding in Art. 9 I (autonomous EU-concept;
interpreted in C-184/12 Unamar)
Comp. § 187(2) US restatement 2nd of Conflict of Laws: “fundamental
policy of a state which has a materially greater interest than the chosen
state in the determination of the particular issue” (comparative impairment
doctrine)
conflict rules: company law
Category « company law » (and other legal persons)
 Issues within this category are mainly:
- requirements for incorporation (eg capital requirements)
- functioning of the company
- dissolution and liquidation of the company.
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Connection factor: either principal seat or incorporation
theory
Conflict rule sometimes in some of its effects set aside
by EU law (free movement)
conflict rules: procedure
Category « procedural law »
 Issues within this category:
- procedure s.s.
- evidence ? (in part procedural, in part substantive law)
 Connection factor: lex fori (Forum = court itself)
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conflict rules: property law
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Category « property law »
Issues within this category:
types of property rights, includes proprietary security rights;
mode of acquisition and loss of property,
rights included in ownership or other property rights
Connection factor: lex rei sitae (location)
immovables: immovable
movables things: possible conflit mobile. E.g. reservation of title in
international sale
receivables: place of debtor or of creditor or lex causae ?
documentary intangibles: lex cartae sitae
dematerialised or intermediated securities
conflict rules: contract
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Worldwide: only Hague « principles » on choice of law in business
contracts (approved 19 March 2015)
In the EU: Rome Treaty of 1980 replaced since 17 Dec. 2009 by
Reg. 593/2008 (« Rome-I ») (except for Denmark & overseas)
unless specific Treaties concluded before 17 June 2008 and incl.
non-member states (art. 24 ff)* or specific EU rules (art. 27)
Category « contractual obligations » in civil & commercial matters
(incl. Individual labour contracts) (excl. arbitration agreements,
trusts, company law, family relations, etc.)
Issues within this category: art. 10 - 12 (incl. formation, validity,
form, interpretation, performance, extinction, prescription, effects of
nullity)
* Eg 1955 Hague Convention Sales, still in force in 7 countries (F, It, 4 Scandinavian countries and Switz)
conflict rules: contract
Rome-I Reg.
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Reg. 593/2008
Connection factor:
Primary factor: choice of law (art. 3 freedom of choice) in
relationship with an international element (otherwise, mandatory
rules remain applicable)
In consumer contracts as defined by art. 6, and individual
employment contracts (art. 8), choice only relates to non-mandatory
law
Limited choice in insurance contracts (other than large risks) art. 7
conflict rules: contract
– choice of law in Rome-I Reg.
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Reg. 593/2008
Choice of law
Law applicable to the choice agreement: in principle the chosen law
Law of a country or also « rules of law » ? (cfr. debate on lex
mercatoria) (see Recital 13 & 14)
Express / implied choice
Partial choice
Problem: no solution for battle of forms with conflicting choice of
law clauses … (see Art. 6 of the Draft Hague principles on choice of
law)
Change of choice (yes, but not to detriment of third parties)
Choice a posteriori (but cannot create a formal invalidity a posteriori
by choosing a « lex invaliditatis ») (art. 3 II)
conflict rules:
contract – choice of law
Choice of law
 Why do parties choose a certain law ?
Mainly Familiarity (incl. language).
Empirical data: Some attraction of English, Swiss and to some extent
French law.
 Battle for the choice of law common law >< « continental law ».
 Moreover, ‘boilerplate clauses’ are often copied from other
jurisdictions without taking into account the chosen (or otherwise
applicable) law (result is an ‘alien contract’)
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conflict rules: contract
Rome-I Reg.
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Reg. 593/2008
Subsidiary connection factor if no choice of law:
sales in art. 4 (a) (residence seller)
services in art. 4 (b) (residence service provider)
immovable property or tenancy in art. 4 (c/d) ,
franchising and distribution in art. 4 (e/f) (residence franchisee,
distributor)
other contracts: residence of party obliged to characteristic
performance (art. 4 II).
more subsidiary factor: « closest connection » (art. 4 IV)
contracts for carriage in art. 5
« Residence » defined in art. 19 Rome-I.
conflict rules: contract
Rome-I Reg.
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Reg. 593/2008
Some more specific categories
Assignability (& pledgeability) and relation with assigned debtor (art.
14 II): lex causae
Legal subrogation (art. 15)
Recourse between debtors (art. 16)
Set-off (art. 17): law of the claim against which the right to set-off
is asserted (« passive claim »)
conflict rules: contract
other instruments
Matters regulated by other IPL instruments:
 Representation (Agency): Hague Convention 1978
- Ch. II: agency contract: choice, subsid. establishment agent
- Ch. III: external relationship: establishment agent
 Trusts: Hague Convention on Trusts
 Arbitration agreements: New York Convention 1957 (s. further)
 Jurisdiction Agreements: Brussels-I Regulation / 2005 Hague
Convention on Choice of Court Agreements
 Bills of exchange: uniform laws
 Precontractual liability: Rome-II-R
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conflict rules: non-contractual
In the EU: Regulation 864/2007 on the law applicable to noncontractual obligations, on acts since Jan 11, 2009 (as clarified in C412/10, Homawoo).
 Scope of category « torts »; see art. 15
- disputed: actio pauliana (damages is certainly within 864/2007; effect
on the attacked legal act is rather under Rome-I)
 Excluded from scope: privacy and personality rights (no agreement;
thus jurisdiction becomes very important)
 Priority (lex specialis …) to:
- existing conventions including non-member states (e.g. traffic
accidents, …),
- EU leges speciales on conflicts (e.g. e-commerce, combating
counterfeiting & piracy)
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conflict rules: non-contractual
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EU Regulation 864/2007 - Connection factor:
- art. 4 I : where the damage occurs (neither the causing event, nor
the indirect consequences) (but rules of safety and conduct: place
of the event, art. 17) (NB for certain acts, locating them is
increasingly difficult, esp. in cyberspace)
- both residing in the same country: 4 II
- manifestly closer connection: 4 III
Specific rules for product liability, unfair competition, environmental
damages, infringing intellectual property, industrial action
Alternative conflict rule for « direct actions » against insurers:
possible if either applicable tort law or applicable insurance contract
law allows it (art. 18)
conflict rules: non-contractual
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Regulation 864/2007 on the law applicable to non-contractual
obligations:
Category unjust enrichment: art. 10
Negotiorum gestio: art. 11
Culpa in contrahendo: art. 12
Common rule: freedom of choice (art. 14)
substantive rules of IPL
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« Substantive rules of IPL»: separate rules for transnational
contractual or other relationships (comp. also substantive law for
transnational procedures). Such rules may be purely national or of
international origin
Mostly of international origin (treaties); different methods: model
law, treaty including rules, etc.
Main examples:
International sales of goods
International transport (eg Maritime transport: Hague rules relating
to bills of lading 1924 > Hamburg rules 1978/1992 (not very
succesful) > Rotterdam rules 2009 (not yet in force)
Exceptionally, treaties have unified or harmonised also the law for
domestic relationships (e.g. bills of exchange; EU Directives)
substantive rules of IPL
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Mode of application - attention (for illustrations, see international
sales):
In principle first apply the conflict rule (with exceptions)
non-uniform law has subsidiary application (lacunae)
Sometimes choice between national and international « model »
(incl. a so-called optional instrument – see draft common EU sales
law (CESL) published Oct 11, 2011)
Reverse example: chosen law has rules that do not apply if the law
applies only on the basis of choice without a further ‘sufficient
connection’. Eg S. 12 of the UK Late Payment of Commercial Debts
Act 1998
IPL - lex mercatoria
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Rules of non-national origin, not part of international public law ,
which would be applicable to international relationships of private
law
As a « material » source: many such rules play a role because they
are « received » within domestic law for international relationships
(as substantive rules of IPL);
They are then applied on the basis of freedom of contract (if not
contradicting mandatory law), custom or usage (for gap filling), as a
source for the content of contractual relationships, etc.....
IPL - lex mercatoria
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Formal source ? Maybe as customary law
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Also as an autonomous system of law ? (a possible choice of law
and not merely integration of a rule in a contract) ?
Defended by i.a. Cl. Schmitthoff and more radically B. Goldman.
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But 2 questions:
« political » question (acceptance by states)
« practical » question (certainty of contract)
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Accepted in the practice of international commercial arbitration
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IPL - lex mercatoria
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Sources : trade customs, standard terms (e.g. UCP), nonimplemented uniform law (?*), general principles and concepts as
received in transnational case law (esp. arbitral decisions)
Eg choice by parties of a convention which is as such not applicable
(HR 26 May 1989 on CMR)
Attempts at codification: Unidroit PICC 1994/2004/2010. Its
«format »: a restatement of the law.