Statut spadkowy w postępowaniu dotyczącym podatku od spadku. Glosa do wyroku Naczelnego Sądu Administracyjnego z dnia 16 maja 2019 r., II FSK 1811/18

The Supreme Administrative Court has correctly adjudicated that without determining which inheritance law is applicable to the inheritance from the testator, the tax authority cannot categorically claim that an heir subject to inheritance and donation tax acquired the ownership of things or rights by inheritance at the time of the testator’s death. The ruling of the Supreme Administrative Court is also an opportunity to take a broader look at the provisions of the Act of the 28th of July 1983 on inheritance and donation tax which go beyond the issues covered by this jurisdiction. That act also raises other issues the resolution of which requires the application of conflict-of-law rules or, at the very least, of the methods of qualification specific to private international law.The position adopted by the Supreme Administrative Court in this verdict should contribute to the increase of the interest of tax authorities in conflict-of-law issues. Inheritance and donation tax is a public levy with which, due to the nature of the legal events covered by it, there are cases with the so-called „foreign element”. These are also of interest to the conflict-of-law rules. When considering them, as follows from the ruling of the Supreme Administrative Court, it is necessary to refer not only to our own (Polish) provisions of civil law, but also, by applying appropriate conflict-of-law rules, to the provisions of foreign civil law.

HAŠKI PROTOKOL O MERODAVNOM PRAVU ZA OBAVEZE IZDRŽAVANjA IZ 2007. GODINE – OSVRT NA KLjUČNE ODREDBE

After decades of Hague Conference for private international law's working and several international instruments, enacted by this organisation after the Second World War in the field of private international law aspects of maintenance, Hague Protocol on the Law Applicable to Maintenance Obligations is adopted. Comprehensiveness of the conflict of law solutions relating to different mutual bases of maintenance with international element, selection of adequate linking factors in this filed and certain solutions, based on favor creditoris principle give to Hague Protocol a landmark of quality and significant source of private international law. As Hague Protocol is included in our conflict of law system, the author in this paper exposes the scope of application of this source, it’s key provisions and significance for domestic private international law.

NEKOLIKO NAPOMENA O UGOVORU O TRGOVINSKOM ZASTUPANjU IZ UGLA MEĐUNARODNOG PRIVATNOG PRAVA SRBIJE

This paper analyzes the influence of mandatory rules of EU Member States on commercial agent’s right to indemnity/compensation (which come from Art. 17 and 18 of Directive 86/653/EEC) on determining the law applicable to commercial agency contract in accordance with the conflict-of-law rules of Serbian Private International Act as well as on jurisdiction (prorogation) clause in favor of Serbian courts. Considering that these mandatory rules are usually classified as overriding mandatory rules which apply irrespective of which law is applicable to an agency contract, the author analyzes two situations in which their application can emerge: the first situation relates to the cases in which a principal has seat in EU Member State and an agent has seat in Serbia; the second situation relates to the cases in which a principal has seat in Serbia and an agent has seat in EU Member State. After that, author explains that the courts of EU Member States dismiss the jurisdiction clauses by which the courts of non-Member States have been prorogated, if these courts would not apply the rules which secure the same or similar level of protection for commercial agents as those of Directive 86/653/EEC. Bearing this in mind, author also analyzes whether the courts of EU Member States would recognize the effects of prorogation of Serbian courts in such cases

Collisional legal regulation of the responsibility of the controlling debtor in respect of cross-border insolvency

This study highlights the problem of establishing the applicable law for cross-border insolvency relations of a legal entity. The author examines various approaches to the choice of the applicable law to the liability of controlling persons, provides foreign experience and reveals the main trends in resolving conflict issues. It is noted that the lack of legal regulation of cross-border insolvency relations, including conflict of laws rules, does not allow creditors to fully recover losses from controlling persons whose assets are in foreign jurisdiction. In order to eliminate contradictions in practice, it is proposed to consolidate in civil legislation an independent conflict of laws rule on the liability of controlling persons in relations of cross-border insolvency of a legal entity. It is concluded that the conflict-of-law choice of the applicable law to disputed legal relations directly depends on the jurisdiction of the state in which the proceedings on the cross-border insolvency of a legal entity are initiated.

INDIVIDUALNA KOMUNIKACIJA I AUTOMATIZOVANO PREGOVARANjE KOD ELEKTRONSKIH UGOVORA

Тhis paper analyses the conflict-of-law regime for agency, where the main attention is given to the problem of determining applicable law for existence, extent and effects of agent’s authority (including effects of excess of authority and acting without authority), since Serbian Private International Law Act (SPILA) does not contain the special conflict-of-law rules for these issues. Having this in mind, the analysis is focused on whether the mentioned issues concerning agent’s authority should be governed by the law applicable to the internal relationship between principal and agent or by the law applicable to the contract between principal and third party, or it is necessary to create the new conflict-of-law rules for these issues in accordance with Art. 2 of SPILA that regulates filling the legal gaps. After providing the arguments against first two solutions, the author explains how to create the new conflict-of-law rules for existence, extent and effects of agent’s authority (including effects of excess of authority and acting without authority) in accordance with Art. 2 of SPILA.

The Question of the Applicable Law in Cross-Border Claims on Product Liability: Reflections from India

The blurring of international barriers has impacted the nature and complexity of tortious claims and, in particular, those concerning product liability. Products manufactured in one country are often sold or used in another State – and there is often a separation in time and space between the occurrence of the harmful behaviour the resultant injury. For this reason, countries across the globe have increasingly considered it inappropriate to subject such claims to the same mechanism to identify the governing law that applies to other tortious claims of different nature such as negligence, nuisance or defamation. The EU, the UK, Australia, Canada, and India’s BRICS partners – Russia and China – are examples of legal systems that have developed a special conflict of law rules on the applicable law in product liability claims. In contrast, the principles of Indian private international law do not contain any special rule. The applicable law is determined on the basis of a uniform principle that extends to all cross-border disputes on tort. The paper provides a critical evaluation of the mechanism to identify the applicable law in international disputes on product liability. It highlights the predicaments in extending the uniform rule to product liability claims and demonstrates how it debilitates access to justice and is not suitable for disputes that arise from accidents caused by products such as autonomous vehicles, which incorporate new technology. Consequently, the paper suggests workable solutions to develop the Indian conflict-of-law rules on the subject.

THE PHILOSOPHICAL BASIS OF THE COMPETENCE TO ADJUDICATE BANKRUPTCY CASES INVOLVING AN ARBITRATION CLAUSE

This research stems from the conflict of competence between Commercial Court and Arbitration in a bankruptcy case involving an arbitration clause. This occurs when parties make an agreement including arbitration as a mechanism of dispute resolution. Nevertheless, when a dispute occurs, one of the parties file a bankruptcy petition to Commercial Court as contained in Article 303 of the Bankruptcy Law. Meanwhile, according to Article 3 and 11 of the Arbitration Law, agreements containing arbitration clause as a mean of dispute resolution provides absolute competence, which is consistent with the pacta sunt servanda principle outlined by Article 1338 of the Civil Code. This raises the question of whether Article 303 of the Bankruptcy Law is inconsistent with pacta sunt servanda or to the arbitration clause as the agreed mechanism of dispute resolution by the parties, because the substance of legal norms has philosophical basis. This research uses normative juridical approach which examines legal materials through the study of documents. The research show that Commercial Court is an extra ordinary court which settle bankruptcy filed to the court. Therefore, the competence cannot be set aside by arbitration in the sense of its legal position and capacity as extra judicial even though it originates from an agreement containing arbitration clause. The philosophical basis that can be applied in the conflict of law refers to the principles governing legislation, namely lex specialis derogat legi generalis, lex posterior derogat legi priori, and integration principles of Article 303 of the Bankruptcy Law.