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Introduction to Polish Private International Law 4th Classes. Dr. Mateusz Pilich Chair of Int’l Private and Trade Law, University of Warsaw. Multi-jurisdictional (Composed) Legal Systems. Case Studies. Case study No. 1

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Introduction to polish private international law 4th classes

Introductionto Polish Private International Law4th Classes

Dr. Mateusz PilichChair of Int’l Private and Trade Law,University of Warsaw

Case studies
Case Studies

  • 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?

  • 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 multi law jurisdictions
Roots of the Phenomenonof Multi-law Jurisdictions

  • 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:

    • Territorial nature – States' succession (Poland after the 1st WW), real union (the UK), regional autonomy (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
How to SolveInternal Conflicts of Laws?

  • Article 9 PIL: the law of the country in question specifies which of several internal private laws governs the question

  • We look for an interregional/interpersonal conflicts rules, be it statutory or not – similar to the renvoi au second degré (transmission to the 3rd law)

    • 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

    • 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

Problematic issues
Problematic Issues

  • 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)

    • Article 9 PILA most specifically dedicated to issues for which the law of one's nationality designed applicable

  • 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.)

  • Countries without internal conflicts rules, e.g. the USA – the most closely connected law applies (Article 9, 2nd sentence PILA)

Case study
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
Nature of the Incidental Question

  • "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
When Does It Really Matter?

  • 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:

    • 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)