Introduction to Polish Private International Law 4 th

Introduction to Polish Private International Law 4 th Classes Dr. Mateusz Pilich Chair of Int’l Private and Trade Law, University of Warsaw

Multi-Jurisdictional (Composed/Non-Unified) Legal Systems

Case Studies n Case study No. 1 A Spanish national, who was born and was living for years in Barcelona, dies intestate as an owner of a house nearby Warsaw. Which law governs the inheritance? n Case study No. 1 A Lebanese married couple with the domicile in Poland wants to divorce by mutual consent. The husband is Muslim, the wife belongs to the Chaldean Christian Church (one of the Catholic Eastern Churches). Should the court divorce the spouses?

Roots of the phenomenon of the multi-legal systems n n n Polish conflicts law tends to designate the law of the country as a whole (what is a 'country' for the PIL? ) A Polish judge only rarely is acquainted with the local relationships and their complexity Laws within the country may diverge according to the criteria of: n n n Territorial nature – States' succession (Poland after the 1 st WW), real union (the UK), regional autonomy, so-called foral laws (Spain), federal political system (the USA) Personal nature – different religions, ethnic or caste provenience, etc. Sometimes also the intertemporal aspects are at stake (see the reunification of Germany after 1989)

How to Solve Internal Conflicts of Laws? n Article 9 PIL: the law of the country in question specifies which of several internal private laws governs the question n We look for an interregional/interpersonal conflicts rules, be it statutory or not – similar to the renvoi au second degré (transmission to the 3 rd law) n Case study No. 1: law of the deceased's nationality (Spanish law) – we look at Article 14(1) and 16(1)(1) Codigo Civil – the law of 'legal residence' of the person (la vecindad civil) applies n Case study No. 2: attitude towards the religion as connecting factor in the Near East, see Regulation No. 60 of the French High Commissioner for Lebanon of 13/03/1936 – any person subject to the law of his/her religious community, CCEO applicable to Catholic Christians but not to Muslims NO COMMON PERSONAL LAW

Problematic Issues n Connecting factors designating the law applicable immediately (e. g. domicile/habitual residence of a natural person, seat of a moral person, place where of performance of a juridical act) n Article 9 PILA most specifically dedicated to issues for which the law of one's nationality designed applicable n Solutions adopted under the international conventions and EU regulations (examples: Articles 16 and 17 of the 2007 Hague Maintenance Protocol; Article 22 of the Rome I Reg. ) n Countries without internal conflicts rules, e. g. the USA – the most closely connected law applies (Article 9, 2 nd sentence PILA)

Incidental Question

Case Study An American national resident in the state of New York, who owned immovables in Warsaw, dies intestate. Pretended heirs are: his last wife and two daughters born from the first marriage. The ex-wife claims that the latter marriage was null and void, the divorce was illegal, and she should inherit property of the deceased. Which law governs the question?

Nature of the Incidental Question n n "Incidental question" – an independent relationship which serves as a precondition for some other relationship, right or status (the latter otherwise called a "principal question") and hence requiring a solution in the first place E. g. recognition of the divorce and validity of the last marriage are "incidental questions" in a succession case Quite often it has only the procedural dimension (the recognition of the foreign judgment, e. g. of the divorce decree) In the strictly understood conflict of laws, an incidental question arises only after the law applicable to the principal question has been specified Law applicable to the incidental question is not governed by the same law as applied to the principal question

When Does It Really Matter? n n n Problem: if the law applicable to the principal question is foreign law, do we have to apply conflicts rule of the forum (here: the Polish one – independent connection), or should it be rather the conflicts rule of the foreign law (dependent connection) in question? Applying foreign conflicts rules may sometimes prevent the Polish judge from invalidating the relationship or status in question In our case: n n The principal question (succession after the deceased American) governed by foreign law – e. g. of the state of Oklahoma The answer to the question which law applies potentially differs (validity of marriage is governed by the law of one's nationality according to the Polish PIL but under the New York law it is generally the law of the country where the ceremony has taken place)

Time Factor in the Conflict of Laws

The Impact of Time Factor on the Conflict of Laws n The time may impact the connection between the situation in question and the law applicable to it in two dimensions: n n in a larger sense – the conflict law in a country of the court's seat may change (e. g. replacing the old Polish PIL Act in 2011, adopting new European Regulations) in a stricter sense – the parties or authorities of a state may impact on the connection (e. g. a party who had the nationality of a country A may acquire citizenship of a country B, he or she may move an object of rights, etc. )

Legislative Changes in the Conflict of Laws n Well-established principle of non-retroactivity of laws: n Article 3 of the Polish Civil Code: The statute shall have no n n n retroactive effect, unless it results from its wording or purpose. Article 2 of the Polish Constitution: The Republic of Poland is a democratic State ruled by law and implementing principles of social justice. Prospective effect of the new law – to apply it to factual situations which were completed after its enactment E. g. the SC judg. 14/2/2013, II CSK 294/12, OSP [Polish Courts Case Law] 2014/1, issue 3 – the intertemporal questions of PIL settled in accordance with the general principles of intertemporal law, as enshrined in the Civil Code and its Introductory Law

Change of the Connecting Factor n n n Plays a role only if the connecting factor is variable (each and every law applicable is taken into account): n Article 11(1) PILA: law of one's nationality from any particular moment governs the capacity of a natural person n Article 51 PILA: law of the spouses' common current nationality governs the effects of marriage (except for marital agreements) The immutable (invariable) applicable law – if it is provided for the application of the law from a particular moment in time (e. g. the moment of birth, conclusion of marriage, one's death, etc. ), e. g. Articles 52(2) or 64 PILA Judg. SC 15/5/2008, I CSK 541/07, OSNC [SCRep. -Civ. ] 2009/9, issue 125: no legal relevance for the change of the nationality by the spouses after the conclusion of the marital agreement

Case Studies n n Example No. 1 In mid 2010, a Polish national Maria C. concludes a marital property agreement with her French husband Sébastien D. Parties choose the regime of the separation of assets (séparation des biens) and the French law as applicable. One year later Maria C. acquires also the French nationality and gives up the nationality of Poland. Does it have any impact on the law governing marital property? Example No. 2 An inhabitant of Wroclaw (south-western Poland) Jan S. bought in Poland a well-kept BMW car with "German papers" at a favorable price. After two-year period of its possession in Poland he left for Switzerland, where he spent one year and a half. One day, when he was coming back to Poland, his car was stopped and seized by the German police because it had allegedly been stolen on the territory of the Bundesrepublik. May Jan S. claim it back on the assumption of the bona fide threeyear possession (Article 169(2), 174 of Polish Civ. c. ), taking into consideration that the Swiss Zivilgesetzbuch provides for a much longer, five-year usucapion period?

Case Study No. 1 n n At the time Maria C. entered into the marital agreement, the current Law of 2011 had not yet been in force (it was enacted on 16/05/2011) The old Law of 1965 did not foresee the professio iuris (choice of law by the parties) for marital contracts Connecting factors of Article 17 PILA 1965: common nationality at the time of entering into agreement common domicile lex fori After the enactment of the new Law nothing has changed, it is still governed by the law as of the day the marital agreement was concluded

Case Study No. 2 n n n The car has been moved through the state frontiers Article 41 PILA operates with a variable connecting factor (lex situs rei from each and every time) The Polish and Swiss Civil Codes do not provide for equal periods of the possession in order to acquire a title on a movable (Poland – 3 years, Switzerland – 5 years) In Poland, the period had not expired yet, in Switzerland the case was similar Jan S. has not acquired the car's ownership

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