PIL lecture 1

1. PIL lecture 1 Addi Rull addi.rull@ttu.ee

2. Case 1sale of goods • Transaction between two companies operating in different countries without • 1) the clause of jurisdiction and/or • 2) the choice of law clause • in the agreement • German company sells goods to Estonian company • dispute about the quality of goods

3. Private International Law Act§ 33. Law applicable in absence of choice of law • (1) If the law applicable to a contract has not been chosen pursuant to § 32 of this Act, the contract shall be governed by the law of the state with which the contract is most closely connected. If a contract is divisible and a part of the contract has independently a closer connection with another state, such part may be governed by the law of that other state.

4. Private International Law Act§ 33. Law applicable in absence of choice of law • (2) A contract is presumed to be most closely connected with the state where the residence or the seat of the directing body of the party who is to perform the obligation characteristic of the contract is situated at the time of entry into the contract. If a contract is entered into in the course of the economic or professional activity of the party who is to perform the obligation characteristic of the contract, the contract is presumed to be most closely connected with the state where the principal place of business of such party is situated.

5. Private International Law Act§ 33. Law applicable in absence of choice of law • If under the terms of a contract the obligation characteristic of the contract is to be performed in a place of business other than the principal place of business, the contract is presumed to be most closely connected with the state where such other place of business is situated.

6. Brussels I regulation • Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

7. Brussels I regulationArticle 5 • A person domiciled in a Member State may, in another Member State, be sued: • 1. (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question; • (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: • - in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, • - in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided, • (c) if subparagraph (b) does not apply then subparagraph (a) applies;

8. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (1980) [CISG]Article 31 • If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: • (a) if the contract of sale involves carriage of the goods - in handing the goods over to the first carrier for transmission to the buyer;

9. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (1980) [CISG]Article 31 • If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: • (b) if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place - in placing the goods at the buyer's disposal at that place; • (c) in other cases - in placing the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract.

10. ECJ • place of the preformance of the obligation • 12/76 Tessili • C-420/97 Leathertex • the place where the goods were delivered • C-386/05 Color Drack • C-381/08 Car Trim

11. Case 2inheritance • A Russian citizen domiciled in Russia passes away. Relatives inherit the property including a building in Estonia which has not been registered as immovable property. • Which law should be applied to solve the inheritance of the building in Estonia: Russian or Estonian?

12. bilateral agreement between Russia and Estonia • Eesti Vabariigi ja Vene Föderatsiooni leping õigusabi ja õigussuhete kohta tsiviil-, perekonna- ja kriminaalasjades

13. bilateral agreement between Russia and Estonia • Artikkel 42. Pärimisõigus (Inheritance) • 1. Vallasvara pärimise õigust reguleeritakse selle lepingupoole seadusandlusega, kelle territooriumil pärandajal oli alaline elukoht. • Inheritance of movable property shall be regulated by the law of the territory where a deceased person resided (domiciled) • 2. Kinnisvara pärimise õigust reguleeritakse selle lepingupoole seadusandlusega, kelle territooriumil vara asub. • Inheritance of immovable property shall be regulated by the law of the territory where a a property is situated

14. bilateral agreement between Russia and Estonia • Artikkel 42. Pärimisõigus (Inheritance) • 1. Vallasvara pärimise õigust reguleeritakse selle lepingupoole seadusandlusega, kelle territooriumil pärandajal oli alaline elukoht. • Inheritance of movable property shall be regulated by the law of the territory where a deceased person resided (domiciled) • Russian law should apply

15. The Civil Code of the Russian FederationSection I, Subsection 3, Chapter 6 • Article 130. The Movables and the Immovables • 1. To the immovables (the immovable property, realty) shall be referred the land plots, the land plots with mineral deposits, the set-apart water objects and everything else, which is closely connected with the land, i.e., such objects as cannot be shifted without causing an enormous damage to their purpose, including the forests, the perennial green plantations, the buildings and all kind of structures. To the immovables shall also be referred the air-borne and sea-going vessels, the inland navigation ships and the space objects. The law may also refer to the immovables certain other property.

16. bilateral agreement between Russia and Estonia • According to Russian law buildings are always considered to be immovable property • Artikkel 42. Pärimisõigus (Inheritance) • 2. Kinnisvara pärimise õigust reguleeritakse selle lepingupoole seadusandlusega, kelle territooriumil vara asub. • Inheritance of immovable property shall be regulated by the law of the territory where a property is situated • Estonian law should apply? Why?

17. Private International Law Act§ 6. Renvoi • (1) If this Act prescribes application of a foreign law (transmission), the rules of private international law of the corresponding state apply. If such rules prescribe application of Estonian law (remission), the rules of Estonian substantive law apply. • (2) If a foreign law prescribes application of the law of a third state, such transmission shall not be taken into consideration.

18. Case 3inheritance • The property of the deceased is in Estonia. The person deceased had Estonian citizenship, but he lived (domiciled) in Sweden. Inheritor comes to Estonia to inherit the property. • Which law should be applied: Estonian or Swedish?

19. Private International Law Act (Estonian)§ 24. Law applicable to succession • Succession shall be governed by the law of the last state of residence of the bequeather. • lex domicilii (law of the domicile) • Does it mean we should apply Swedish law of succession? • Swedish law provides that succession shall be governed by the law of the citizenship of the bequeather. • lex patriae (law of nationality) • Which law should be applied? • renvoi –Estonian law should be applied

20. Case 4inheritance • The property of the deceased is in Estonia. The person deceased had German citizenship, but he lived (domiciled) in Sweden. Inheritor comes to Estonia to inherit the property. • Which law should be applied: Estonian, German or Swedish?

21. Private International Law Act (Estonian)§ 24. Law applicable to succession • Succession shall be governed by the law of the last state of residence of the bequeather. • lex domicilii (law of the domicile) • Does it mean we should apply Swedish law of succession? • Swedish law provides that succession shall be governed by the law of the citizenship of the bequeather. • Does it mean German law in this case? • lex patriae (law of nationality) • Which law should be applied? • renvoi –Estonian law should be applied

22. Inheritance • Main connecting factors by which states may regulate succession • the domicile of the deceased • Anglo-American legal systems • the place of property to be inherited • the law of the nationality • Sweden, Germany

23. Renvoi • a legal system does not apply renvoi (Italy) • single renvoi • renvoi that accepts a single transmission • renvoi that does not accept a single transmission • Estonia • total (double) renvoi • Great Britain

24. Private international law • foreign element • characterisation of the problem • lex fori • lex causae • connecting factor • private law of a state, EU law, treaties • renvoi

25. Private International Law ActForeign element • § 1. Scope of application of Act • This Act applies in cases where a legal relationship is connected with the law of more than one state. • two Estonian companies preforming a transaction in Estonia – is there a foreign element? • two Estonian companies that have chosen Swedish law to govern their contract are preforming a transaction in Estonia – is there a foreign element?

26. European Judicial Network • http://ec.europa.eu/civiljustice/jurisdiction_courts/jurisdiction_courts_ec_en.htm