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Private International Law

Selected e-articles

Abstract: This article offers a critique of injustices in European private law. It explains why the EU should be held morally responsible for the injustices created or supported by its private law. In particular, it demonstrates for several core elements of EU private law that they are unjust, because they cannot be justified with non-rejectable reasons, and insofar lead to domination by EU private law. This is the case, especially, for EU private law’s consumerism, its Eurocentrism, its constitutionalized market-functionalism, its doctrinal and judicial expert government, and its blindness towards intersectional domination. The article also critically discusses, and rejects, various theories offering blueprints for an ideal European private law system. Instead, it argues for the priority of democratic justice and for an urgent focus on salient injustices in EU private law’s theory and practice.

Abstract: The objective of this work is to emphasize the role of global law in the current legal reality and the importance of autonomy of the will in regulating international legal relationships. Methods: The study starts from the existence of a legally fragmented world and the differentiation of three levels of regulation of legal relationships with a foreign element. One block of universal regulation, consisting of international treaties and rules of uniform law, another regional level based on the existence of regional integration organizations with their own regulations, and finally a diminishing state level, formed by national legal systems. Results: Whether in a phase of globalization or post-globalization, the juridical reality of international trade and legal relations, in general, undergo significant changes that are worth analyzing. The perspective of global law allows us to contemplate this juridical reality from an eminently practical standpoint, which places the autonomy of will as the protagonist of the legal framework for international contracting, and points to an increasingly significant role in the field of personal and family legal relations. Scientific novelty: Emphasize the role that autonomy of the will plays in the regulation of legal relationships with a foreign element and the diminishing relevance of the state legislator in the current globalized world. Practical significance: Regulation of cross-border legal relationship, both commercial and personal and family, in a globalized world like the present.

Abstract: This article consists of a comparative study of the basic principles underlying the rules of jurisdiction in private international law in commercial cases in the law of the European Union, the United States and England. It considers the objectives which these rules seek to achieve (protection of the rights of the parties and respect for the interests of foreign States) and the extent to which these objectives are attained. It takes tort claims, especially in the field of products-liability, as an example and considers which system has the most exorbitant rules. It suggests explanations for the differences found.

Abstract: EU private international law regulations are articulated around the ‘habitual place of work’ factor, which does not fit well with the fact that not only are these workers mobile, but their place of work is also mobile. This article critically examines the proxy to this concept developed by the Court of Justice to provide transport workers with access to justice. There are some caveats to the chosen factual approach, in particular its complexity as well as the disregard for the collective dimension of employment relationships, since it can only be undertaken on a case-by-case basis. Moreover, this factual approach does not fit well to all transport sectors. The application of this approach considering the transport worker's domicile/habitual residence might enhance the said access to justice. A similar factual approach is employed in the Posting Drivers in the Road Transport Sector Directive which further compromises worker protection in this sector.

Abstract: This article is a revised version of a concept paper written for the European Commission on the private international law regulation of individual employment relationships within the EU. It aims to assess the regulation of such relationships from the perspective of European private international law and indicate potential avenues for reform.

Abstract: This article bridges artificial intelligence (AI) and EU private international law (PIL), also known as ‘conflict of laws’. PIL is the body of (usually domestic or regional) rules that determine which country’s law applies to cross-border private legal relationships, such as contracts or torts. The article will start by bringing EU PIL to bear on the application of AI in cross-border settings. To that aim, it will first evaluate whether the current framework is up to the task of determining what country’s law is applicable to claims (with an emphasis on liability claims) arising out of private applications of AI systems. Then, the article will turn to discuss a recent proposal of the European Parliament for a bespoke future Regulation concerning civil liability for AI systems, including a novel rule of PIL. Finally, the enquiry will switch perspective by outlining how AI can facilitate the application of often complex rules of EU PIL in practice.

Abstract: The article discusses the conflict-of-laws issues raised by such compensatory claims as may be brought against health professionals and medical facilities involved in end-of-life procedures. The issues are addressed from the standpoint of EU private international law. The paper highlights the lack of international legal instruments on assisted-suicide procedures. It is argued that the European Convention on Human Rights requires that States provide a clear legal framework concerning those procedures. The author contends that the said obligation has an impact on the interpretation of the relevant conflict-of-laws provisions of the EU.

Abstract: This contribution deals with both jurisdiction and applicable law with regard to cross-border collective actions in labour law. It demonstrates that the European conflicts rule embodied in Article 9 of the Rome II Regulation is open to diverging interpretations. This can, to a large extent, be explained by the very diverse legal characterisation of industrial action in the national systems of the EU Member States. The connecting factors used in the Rome II Regulation also create specific challenges when applied in the context of industrial action. As a result of these complications, Article 9 Rome II currently fails to fulfil its function of creating legal certainty around the legality and the legal consequences of industrial action with a cross-border element. A further clarification of the scope of Article 9 and the role played by the law of the country in which the industrial action is taken would help to reduce the current confusion and uncertainty. The uncertainty as to the applicable law is exacerbated by the rules on jurisdiction in the Brussels I bis Regulation which allow, to some extent, for forum shopping. Two provisions of the Brussels I bis Regulation might warrant revision to reduce their negative impact on the exercise of the right to industrial action: the rule on multiple defendants (Article 8(1)) and the rule granting jurisdiction to the place where the damage caused by the industrial action is sustained (Article 7(2)).

Abstract: Can claimants choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences? While domestic legal systems generally recognise concurrent liability, commentators object that its extension to private international law would be unprincipled and would threaten the field's values. This, however, contrasts with the position in common law and under EU Regulations, where concurrent claims are generally recognised with only narrow limits. This article justifies concurrent claims in private international law, arguing that the same premises supporting concurrent liability in domestic law exist in private international law, and that no field-unique concerns foreclose it.

Abstract: This article offers a reconstruction of how the Court of Justice of the European Union (EU) justifies the territorial scope of application of EU law. Scholarship on this issue tends to advocate for an expansive projection of EU norms in the pursuit of global values, subject to the external limits of public international law. This article will develop a critique of this approach by pointing to its underlying assumptions as to the territorial dimension of the EU's rule, the insoluble practical issues that it leads to, and the need to consider differently the EU's spatial identity and relation to the wider world. It will also be argued that, in fact, other case law sometimes already reflects an alternative vision, by imagining the EU implicitly, not as a ‘global actor’ promoting universal values, but as a concretely situated and spatially bounded community. It will be shown that this is so with the methodological help of private international law, and in particular three doctrines that are traditional to this discipline—the localisation of cross-border relations, international imperativeness, and the public policy exception. This will ultimately allow for a more sophisticated understanding of the EU's territory to emerge—irreducible to the physical coordinates of its acts of intervention, or the mere sum of the physical spaces under Member State sovereignty, but as a distinct space of social relations, informed and delineated by the particular axiology and structure of the EU legal system.

Abstract: The present paper tackles the issue of the recognition of cross-border marriages and their effects within the European Union. The current praxis allows interesting remarks on the cross-border effects of foreign marriages and their recognition in the perspective of the rights to free movement and to family life. In this framework, the paper scrutinizes a potential definition of the marriage, whether according to EU free movement law or to European human rights law. Due to the lack of a commonly accepted definition, it tests the classic approach to the circulation of foreign documents and certificates, i.e. the conflict of laws perspective. Leading on, it analyses the more fashionable method of the mutual recognition of situations created abroad, as modelled by some States and tested in some cases by the European Courts, too. Despite important advantages, this method does not seem easily accepted for the circulation of the status of spouse(s) and of the institution of marriage. With the aim to push towards enhanced free movement rights and strengthened human rights, the present paper offers some final remarks regarding the legal value of (international) family law in the framework of a social Constitution of the EU.

Abstract: The conflict of law rules applicable to the insurance of mass risks have crucial importance for the insurance contracts with international element from the legal and economical point of view, because the legal regime has overwhelming effect on the successful contract implementation. The differentiation between large and mass risks was developed historically in the European private international law by the legal regulation contained in the life- and non-life insurance directives, which contained conflict of laws rules designed for insurance contracts, which had to be implemented to the legal orders in the EU Member States. The relevance of the distinction between large and mass risks for the determination of applicable law is given also after entry into force of the Rome I Regulation, which had to codify in its art. 7 conflicts of laws rules of the insurance contracts for the purpose of elimination of the shortcomings, which were typical for the previous legal regulation, which was implemented from the EU life- and non-life directives also to the Czech legal order.

Abstract: The article presents the Polish courts’ application of the national Private International Law Act 2011 (PIL 2011) during the 10 years it has been in force. The analysis of jurisprudence is supplemented with observations on recent developments in Polish doctrine. The authors discuss correct and erroneous solutions adopted by courts, which are illustrated by provided examples of judgments regarding diverse legal issues. The article deals with mistakes consisting in ignoring the need to search for the applicable law. It also concerns, on the one hand, faulty perceptions and applications of newly introduced instruments (such as the so-called informative provisions or new conflict rules concerning issues that have not been regulated before in the conflictof- laws sphere) or of instruments shaped differently than in the past (such as renvoi). On the other hand, it considers problems that emerged in relation to mechanisms that are well known to Polish judges (such as the public policy exception). Challenges relating to delimiting PIL 2011 from other sources of PIL are also discussed.

Abstract: The objectives of this essay are to address the relationship between public and private enforcement of the rights contained in the General Data Protection Regulation (GDPR) in terms of data protection representative actions; to make a general overview of Directive 2020/1828 and to analyze to what extent a systematic interpretation of the various rules of different legal disciplines that may be involved in representative actions is possible and desirable. Furthermore, this paper addresses the question whether the introduction in the GDPR of new heads of international jurisdiction is appropriate and how these relate to the classical heads of jurisdiction of Regulation 1215/2012 that may be applicable in the area of representative actions. 

Abstract: This article addresses the EU private international law framework for cross-border disputes concerning credit ratings. It argues that investors harmed by faulty ratings face considerable challenges when enforcing claims against credit rating agencies. These challenges arise not only due to the high standard of proof for damages claims and additional barriers rooted in substantive law but also from the limited territorial reach of the common EU civil liability regime of Article 35a of the amended Regulation (EC) No 1060/2009. Additionally, uncertainties concerning the determination of the concurrently applicable national law and the lack of unified European cross-border collective redress mechanisms in the area of capital markets law compound the problem. Against this background, this article discusses the options for reforming the existing private international law regime to enhance investors' access to justice in disputes with CRAs.

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