scholarly journals Niejednoznaczne podstawy stosowania przepisów wymuszających swoje zastosowanie (przepisów koniecznego zastosowania)

2019 ◽  
Vol 24 ◽  
pp. 169-187 ◽  
Author(s):  
Piotr Rodziewicz
Keyword(s):  
Legal Basis ◽  
Conflict Of Laws ◽  
Mandatory Rule ◽  
Mandatory Rules ◽  
Substantive Law ◽  
Legal Grounds ◽  
Conflict Of Law ◽  
Second Degree

The article raises issues concerning legal basis for the application of the overriding mandatory rules. In the Polish doctrine there are two opposing concepts in terms of explanation of the legal grounds for application of overriding mandatory rules. Both theories do not have a universal dimension, in the sense that they do not sufficiently explain the basis for the application of domestic as well as foreign overriding mandatory rules, being part of lex causae or coming from a third state. The article presents arguments for and against the possibility of deriving the legal grounds for application of the overriding mandatory rules, with reference to submissions made to that effect in literature. The author makes also an attempt to formulate a concept complementary to the concept of an integrated conflict-of-law rule with the substantive law rule, boiling down to the assumption that the basis for application of overriding mandatory rule is a second degree conflict of laws rule allowing to apply a first degree conflict of laws rule integrated with the substantive rule.

Conflict of law 1921–1971 the way ahead

1972 ◽  
Vol 31 (1) ◽  
pp. 67-120 ◽  
Author(s):  
K. Lipstein
Keyword(s):  
General Principle ◽  
Legal Basis ◽  
Conflict Of Laws ◽  
Sixth Edition ◽  
Foreign Law ◽  
Long Time ◽  
English Law ◽  
The Law ◽  
Conflict Of Law ◽  
The Way

(1) Legal BasisWhen the first issue of the Cambridge Law Journal appeared in 1921, the English rules of the conflict of laws were those stated and reformulated by Dicey and by the editors of Westlake and Foote. Their progress between 1858 and 1912 had been charted by Dicey himself in a survey published in 1912. The legal basis for the application of foreign law in England was and remained Lord Mansfield's pronouncement in Holman v. Johnson: “Every action here must be tried by the law of England, but the law of England says that in a variety of circumstances … the law of the country where the cause of action arose shall govern.” Dicey never waivered in his adherence to this rule of English law, but he supplemented it with an argument drawn from the doctrine of acquired rights which bedevilled English lawyers for a long time, until in 1949 the editors of the sixth edition of Dicey took what they believed to be a bold, but substantially honest, step by restricting the concept to its proper boundaries and thus by depriving it of its capacity to serve as a general principle of the Conflict of Laws.

Part I General Principles, 2 The Conflict of Laws in Commercial Transactions

2015 ◽  
Keyword(s):  
Private International Law ◽  
Commercial Law ◽  
Conflict Of Laws ◽  
Party Autonomy ◽  
Mandatory Rules ◽  
Uniform Law ◽  
The Hague ◽  
Substantive Law ◽  
The Relationship ◽  
Domestic Law

Chapter 2 examines the relationship between transnational commercial law (in the sense of harmonised substantive law) and that body of rules determining the applicable domestic law in the absence of any such ‘uniform law’. The conflict-of-laws rules, too, are either national (be it codified, be it judge-made or common law) or transnational, such as the relevant EU Regulations or conventions prepared, for example, under the auspices of the Hague Conference on Private International Law or CIDIP, the specialized body of the Organization of American States. The chapter discusses the most important connecting factors (party autonomy, characteristic performance, lex situs, etc) as well as general concepts, such as ‘public policy’, ‘internationally mandatory rules’, etc. Finally, it addresses the question whether with the increasing numbers of ‘uniform’ law instruments the conflict of laws may ever become superfluous.

scholarly journals The Impact of Brainerd Currie’s Governmental Interest on the Principle of the Closest Connection

Lex Russica ◽  
2020 ◽  
pp. 9-19
Author(s):  
Т. V. Novikova
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Matter Field ◽  
Regulation Mechanism ◽  
Private International Law ◽  
The Russian Federation ◽  
Substantive Law ◽  
The Impact ◽  
Law Regulation ◽  
Conflict Of Law

In modern private international law, the principle of the closest connection involves not only the identification of the prevailing territorial connection, but also the consideration of substantive factors (protection of a weaker party, preferability to keep the transaction valid, etc.). The paper substantiates the thesis that, being initially based on the territorial localization of the relationship, the analyzed principle in the course of its development was enhanced with the achievements of others doctrinal approaches to the resolution of the conflict-of-law issue, including the concept of “governmental” or “state” interest developed by American legal scholar Brainerd Currie. A genius breakthrough suggested by B. Currie is examined as an attempt to overcome the mechanical approach of conflict-of-law rules, expand the subject matter field of assessment at the stage of resolving the conflict-o-law issue and, ultimately, evaluate the substantive law result of this decision within the framework of understanding law as a tool for the protection of an individual by the state. Nevertheless, substantive law factors, contrary to one of the main tenets of B. Currie’s teaching, do not replace traditional conflict-of-laws rules at all. To the extent that the conflict-of-law regulation mechanism balances predictability and flexibility of decisions, it complements the search for territorial connection with substantive law considerations. The research makes it possible to conclude that the principle of the closest connection in private international law of the Russian Federation, in the context of global trends in the development of approaches to the resolution of conflict-of-law issues, is complex in nature, as indicated by the explanation of the Plenum of the Supreme Court of the Russian Federation that “when determining the closest connection, the court,” first, establishes ”the prevailing territorial connection” and, second, “may take into account the application of the law of which country will best realize the universally recognized principles of civil law and of its institutions.” As a consequence, it is the combination of territorial and substantive law components in the content of the principle of the closest connection that provides an appropriate balance between predictability and flexibility of the modern mechanism of conflict-of-law regulation.

United in Diversity – Regional Unification of the Conflict-of-law Rules in Matters of Matrimonial Property Regimes

2019 ◽  
pp. 160-178
Author(s):  
Lucie Zavadilová
Keyword(s):  
Public Policy ◽  
International Law ◽  
Private International Law ◽  
Public Interests ◽  
The Public ◽  
General Part ◽  
Substantive Law ◽  
Fundamental Values ◽  
Property Regimes ◽  
Conflict Of Law

The unification of the conflict-of-law rules in matters of matrimonial property regimes at EU level seeks to mitigate differences in substantive law in particular legal systems. The aim of this contribution is to analyse the doctrine of overriding mandatory provisions and consider the applicability of the public policy exception, which limit the application of the law otherwise applicable determined in compliance with the unified conflict-of-law rules. The question author addresses in this paper is whether these institutes of the general part of private international law provide for sufficient safeguards to protect the fundamental values and public interests of the forum law in matters of matrimonial property regimes.

IV Trust Arbitration as a Matter of International Law, 19 Arbitrating Trust Disputes: Effect of the Hague Convention on the Law Applicable to Trusts and on Their Recognition

2016 ◽  
Author(s):  
von Segesser Georg
Keyword(s):  
Hague Convention ◽  
Conflict Of Laws ◽  
Binding Effect ◽  
Applicable Law ◽  
The Hague ◽  
The Law ◽  
Substantive Law ◽  
The Hague Convention ◽  
International Conventions ◽  
Selection Of

This chapter examines the effect of the Hague Convention on the Law Applicable to Trusts and on their Recognition (Hague Trust Convention) on the law applicable to the arbitration of trust disputes. It also considers the extent to which arbitrators can apply the conflict of laws rules of the convention in cases where the parties have not agreed that these rules should govern the issues in dispute. The chapter is organized as follows. Section II addresses the selection of the applicable substantive law by arbitral tribunals in cases where the parties have not agreed on the applicable law. Sections III and IV cover international conventions and, in particular the Hague Trust Convention, as sources for the selection of the applicable law. Section V deals with the validity and effect of arbitration agreements while Section VI considers the effects of a choice of-law-clause and the binding effect of such a clause for the arbitral proceedings. Section VII addresses the effect of specific conflict of laws rules of the Hague Trust Convention on the law applicable to the merits in international trust arbitration disputes.

III Trust Arbitration as a Matter of National Law, 17 Trust Arbitration in Switzerland

2016 ◽  
Author(s):  
Wüstemann Tina ◽  
Huber Roman
Keyword(s):  
International Law ◽  
Private International Law ◽  
International Arbitration ◽  
Swiss Law ◽  
The Hague ◽  
Substantive Law ◽  
Conflict Of Law

This chapter argues that Switzerland’s importance as centre for trust services as well as its longstanding tradition in international arbitration make it a perfect venue for trust arbitration, particularly in light of the scarcely developed arbitration law and practice in several offshore trust jurisdictions. Against this background, it examines whether trust disputes can be arbitrated in Switzerland, with a particular focus on the recognition of arbitration clauses in trust deeds. While Switzerland does not provide for the institution of trusts in its substantive law, it has ratified the Hague Trust Convention with took effect from 1 July 2007 and has enacted new conflict of law provisions, in particular Articles 149a to 149e of the Private International Law Statute (PILS), which operate so as to allow the full ‘implantation’ (or incorporation) of foreign trusts into Swiss law.

Law Applicable to Unilateral Juridical Acts and Uniform Conflict-of-law Rules

2013 ◽  
pp. 1-15
Author(s):  
Monika Pauknerová
Keyword(s):  
International Law ◽  
Private International Law ◽  
European Regulation ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Technical Structure ◽  
Juridical Acts ◽  
Supranational Regulation ◽  
Conflict Of Law

Private international law smoothes the edges of civilian law and common law thanks to its specific legislative and technical structure. Conflict-of-law rules are considered to be neutral, and therefore more appropriate for unification, than substantive rules because countries are prepared to surrender their own individual solutions for the sake of uniform international or supranational regulation. This is evident in the successful unification of conflict-of-law rules at the global and European Union levels, as compared with the less common partial unifications of substantive rules. The paper illustrates several examples of unilateral legal acts in the European space, how diverse may be their substantive qualification in different legal systems, and what impacts these substantive differences may have upon the determination of the applicable law for obligations under European conflict-of-law rules. From the perspective of the conflict of laws, an issue remains open regarding what approach should be taken where a uniform legislative instrument – namely a European Regulation – fails to include a particular institution or act either expressly or impliedly.

I. An Imperfect Improvement: The New Conflict of Laws Act of the People's Republic of China

2011 ◽  
Vol 60 (4) ◽  
pp. 1065-1093 ◽  
Author(s):  
Zhengxin Huo
Keyword(s):  
Legal System ◽  
People’S Republic Of China ◽  
People's Republic Of China ◽  
Standing Committee ◽  
Conflict Of Laws ◽  
Legislative History ◽  
Republic Of China ◽  
Chinese Characteristics ◽  
People's Congress ◽  
Conflict Of Law

On 28 October 2010, the Standing Committee of the Eleventh National People's Congress adopted China's first statute on the Conflict of Laws: the ‘Act on the Application of Laws over Foreign-related Civil Relationships’ (‘Conflicts Act’).1 The adoption was an historic event in Chinese legislative history, as it indicates China has modernised its conflict-of-law rules after many years of unremitting efforts made by legislators and scholars. More importantly, it means that ‘a socialist legal system with Chinese characteristics’ has been successfully established, and allows China to claim to have a systematic legal system.2

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