JJUA55091U Private International Law in a Comparative Perspective (NOTE - This course has been cancelled in E15)

Volume 2015/2016

Private International Law is a core subject in the academic curriculum of legal studies in many countries around the globe. The importance of the field in a globalised world is quickly growing as the cross-border trade and the movement of persons and their families notably increase. Acquiring a good knowledge on how to legally approach controversies that may arise from such situations is thus highly relevant. The objective of the course is to present and familiarise students with the general concepts, problems and legal framework of private international law. After an introduction of basic concepts, the course is further divided into twosegments:

(1) the part focusing on obligations, property-related issues, and business entities

(2) the part dedicated to family matters.

The knowledge on substantive domestic contract, property and commercial law, as well as substantive family law, acquired by students during Bachelor studies, would form a basis for exploring, understanding and discussing private international law issues. The discussed issues will be presented in a comparative perspective, covering a number of major jurisdictions, as well as the EU regulatory framework. The part focusing on the civil and commercial matters will discuss practical implications of the diversity of domestic legal regimes for the flow of trade, as well as for non-commercial obligations and property rights, including the key issue of legal certainty and predictability. Related evidence issues, regarding admissibility of the proof of the content of foreign law will be considered, along with the matters of jurisdiction, specific for commercial cases (including the discussion on international commercial arbitration as a currently largely dominant dispute resolution option, on the wide scope of discretion of the arbitral tribunals in regard to the selection of relevant conflict of law rules, and on its practical legal consequences). Regulatory framework in regard to contractual and non-contractual obligations, as well as property rights and business entities will be discussed on the examples of standards adopted in selected jurisdictions, including Germany, the UK, France, Switzerland and the United States. The increasing role of the European Union in lawmaking in the field of private international law will also be acknowledged; in particular, the Rome I and Rome II Regulations shall be discussed in detail.

Relevant application of the conflict of laws analysis in civil and commercial matters will be illustrated by extensive case law discussion and practiced in a series of exercises in problem solving and interactive assignments. The course also aims at highlighting contemporary role of transnational standards, or the modern lex mercatoria, in commercial relations and their status as sources of (the knowledge of) the law, as well as their position in the process of determination of substantive applicable rules through the conflict of law analysis. In the part devoted to family matters, an explanation of the main problems of the choice of law rules will be offered on the basis of some leading cases. Family law has traditionally been regarded as a subject deeply embedded in the (legal) national culture.

Private international law in family matters remains, thus, to a great extent, national law. Giving the lack of comprehensive material in English language concerning national legislation on private international law issues, the course shall focus on specific topics on family law (e.g. matrimonial property regimes, registered partnerships, cohabitation, same-sex marriages, divorce) in some selected jurisdictions (e.g. United Kingdom, Spain, some Scandinavian countries, Belgium). Furthermore, the coexistence, in some countries, of diverse family laws (e.g. the US or Spain) leads to internal conflicts of laws within those jurisdictions. In spite of the predominance of the national character of private international law in family matters, some EU legal instruments have been enacted with the aim of seeking harmonisation of conflicts-of-laws solutions within the EU.

Some of these instruments [e.g. Council Regulation (EC) No 2201/2003 (Brussels II Bis)] are solely focused on rules on jurisdiction and recognition, whilst others include rules on applicable law [e.g. Council Regulation(EU) No. 1259/2010]. The Directive 2004/38/EC on free movement shall also be presented insofar as it may be relevant in cross-border cases. Furthermore, in academia, research groups have been devoted at exploring harmonisation of family law in Euope. The most relevant is the European Commission of Family Law (CEFL). The academic approaches on the matter shall be discussed. Finally, some selected conventions of the Hague Conference of Private International Law shall briefly be presented.

• Private international law: definition; jurisdiction and forum shopping, the Brussels regime; applicable law, the choice of law rule, connecting factors, renvoi; recognition and enforcement of foreign judgements and arbitral awards.

• Determination of proper law in obligations and property rights. Choice of law and the role of lex fori. Scope of discretion in arbitration. The role of harmonized and transnational instruments.

• Contractual obligations. Rome I Regulation. Contracts concluded before December 18, 2009

• Non-contractual obligations. Rome II Regulation. Obligations not governed by the Rome II Regulation.

• Property rights. Immovables and movables.

• Business entities.

• The choice of law rule in family matters, its problems and main connecting factors.

•Selected issues in international family law for some selected jurisdictions (e.g. divorce, registered partnership, cohabitation, same-sex marriages)

• Internal conflicts of laws

• EU Private International Law in family matters. EU legal instruments. Free movement.

• The Hague Conventions

Learning Outcome

Upon the completion of the course, the students shall be able to:

• Identify, present and apply general concepts of international private law.

• Recognise and address main problems of the choice of law rule in civil, commercial and family matters

• Identify and solve issues of jurisdiction, as well as critically use choice of forum options

• Explain different national approaches to solve selected private international law issues.

• Explain the framework and functioning of the different EU instruments on private international law in family matters and The Hague conventions and put them into perspective in relation to the interaction with national rules.

• Present and explain academic approaches in relation to harmonisation of family law in Europe.

• Discuss and critically argue in favour of various legal solutions, with due consideration to the theoretical framework and the different sources involved.

Given the absence of a comprehensive textbook on private international law available in English and not focusing on a particular jurisdiction, a selection of articles and materials shall be provided by the instructors.

Students must have a basic knowledge on national substantive family law, as well as
substantive contract, property and commercial law In addition, students must have a good
command of English language (course materials and class instruction will be provided in
• lectures
• seminar-type discussion
• case study (case law analysis, hypo solving)
• team assignments (case analysis and presentation)
Some content of this course related to family matters will also be discussed at the course
Comparative and International Family Law (marriage, registered partnership, cohabitation),
although the adopted focus and scope of analysis will be different and both courses are
supplementary rather than mutually exclusive.
  • Category
  • Hours
  • Preparation
  • 364,5
  • Seminar
  • 48
  • Total
  • 412,5
Type of assessment
Oral examination, 20
Oral exam based on synopsis, 20 minutes.
Marking scale
7-point grading scale
Exam period

14. -18. of December (preliminary dates)