IntroductionIntroductionto Polish Private to Polish Private International LawInternational Law

4th Classes4th Classes

Dr. Mateusz PilichDr. Mateusz PilichChair of Int’l Private and Trade Law,Chair of Int’l Private and Trade Law,

University of WarsawUniversity of Warsaw

Multi-Jurisdictional Multi-Jurisdictional (Composed/Non-Unified)(Composed/Non-Unified)

Legal SystemsLegal Systems

Case StudiesCase Studies

Case study No. 1Case study No. 1

A Spanish national, who was born and was living for A Spanish national, who was born and was living for years in Barcelona, dies intestate as an owner of a years in Barcelona, dies intestate as an owner of a house nearby Warsaw. Which law governs the house nearby Warsaw. Which law governs the inheritance?inheritance?

Case study No. 1Case study No. 1

A Lebanese married couple with the domicile in Poland A Lebanese married couple with the domicile in Poland wants to divorce by mutual consent. The husband is wants to divorce by mutual consent. The husband is Muslim, the wife belongs to the Chaldean Christian Muslim, the wife belongs to the Chaldean Christian Church (one of the Catholic Eastern Churches). Should Church (one of the Catholic Eastern Churches). Should the court divorce the spouses?the court divorce the spouses?

Roots of the PhenomenonRoots of the Phenomenonof Multi-law Jurisdictionsof Multi-law Jurisdictions

Polish conflicts law tends to designate the law of the Polish conflicts law tends to designate the law of the country as country as a wholea whole (what is a 'country' for the PIL?) (what is a 'country' for the PIL?)

A Polish judge only rarely is acquainted with the local A Polish judge only rarely is acquainted with the local relationships and their complexityrelationships and their complexity

Laws within the country may diverge according to the criteria of:Laws within the country may diverge according to the criteria of: Territorial natureTerritorial nature – States' succession (Poland after the 1 – States' succession (Poland after the 1stst WW), WW),

real union (the UK), regional autonomy (Spain), federal political real union (the UK), regional autonomy (Spain), federal political system (the USA)system (the USA)

Personal nature Personal nature – different religions, ethnic or caste provenience, – different religions, ethnic or caste provenience, etc.etc.

Sometimes also the Sometimes also the intertemporal aspectsintertemporal aspects are at stake (see are at stake (see the reunification of Germany after 1989)the reunification of Germany after 1989)

How to SolveHow to SolveInternal Conflicts of Laws?Internal Conflicts of Laws?

Article 9 PIL: the law of the country in question specifies which of Article 9 PIL: the law of the country in question specifies which of

several internal private laws governs the questionseveral internal private laws governs the question

We look for an interregional/interpersonal conflicts rules, be it We look for an interregional/interpersonal conflicts rules, be it

statutory or not – similar to the statutory or not – similar to the renvoi au second degré renvoi au second degré

(transmission to the 3(transmission to the 3rdrd law) law) Case study No. 1:Case study No. 1: law of the deceased's nationality (Spanish law) – we law of the deceased's nationality (Spanish law) – we

look at Article 14(1) and 16(1)(1) look at Article 14(1) and 16(1)(1) Codigo Civil – Codigo Civil – the law of 'legal the law of 'legal

residence' of the person (residence' of the person (la vecindad civilla vecindad civil) applies) applies

Case study No. 2:Case study No. 2: attitude towards the religion as connecting factor in attitude towards the religion as connecting factor in

the Near East, see Regulation No. 60 of the French High Commissioner 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 for Lebanon of 13/03/1936 – any person subject to the law of his/her

religious community, CCEO applicable to Catholic Christiansreligious community, CCEO applicable to Catholic Christians

Problematic IssuesProblematic Issues

Connecting factors designating the law applicable Connecting factors designating the law applicable immediately immediately

(e.g. domicile/habitual residence of a natural person, seat of a (e.g. domicile/habitual residence of a natural person, seat of a

moral person, place where of performance of a juridical act)moral person, place where of performance of a juridical act) Article 9 PILA most specifically dedicated to issues for which the Article 9 PILA most specifically dedicated to issues for which the law law

of one's nationalityof one's nationality designed applicable designed applicable

Solutions adopted under the international conventions and EU Solutions adopted under the international conventions and EU

regulations (examples: 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 Countries without internal conflicts rules, e.g. the USA – the most most

closely connected law closely connected law applies (Article 9, 2applies (Article 9, 2ndnd sentence PILA) sentence PILA)

Incidental QuestionIncidental Question

Case StudyCase Study

An An American national resident in the state American national resident in the state

of New Yorkof New York, who owned immovables in , who owned immovables in

Warsaw, dies intestate. Pretended heirs are: his Warsaw, dies intestate. Pretended heirs are: his

last wife and two daughters born from the first last wife and two daughters born from the first

marriage. The ex-wife claims that the latter marriage. The ex-wife claims that the latter

marriage was null and void, the divorce was marriage was null and void, the divorce was

illegal, and she should inherit property of the illegal, and she should inherit property of the

deceased. Which law governs the question?deceased. Which law governs the question?

Nature of the Incidental Nature of the Incidental QuestionQuestion

"Incidental question""Incidental question" – an independent relationship which – an independent relationship which serves as a precondition for some other relationship, right or serves as a precondition for some other relationship, right or status (the latter otherwise called a status (the latter otherwise called a "principal question""principal question") and ) and hence requiring a solution in the first placehence requiring a solution in the first place

E.g. recognition of the divorce and validity of the last marriage are E.g. recognition of the divorce and validity of the last marriage are "incidental questions" in a succession case"incidental questions" in a succession case

Quite often it has only the procedural dimension (the recognition Quite often it has only the procedural dimension (the recognition of the foreign judgment, e.g. of the divorce decree)of the foreign judgment, e.g. of the divorce decree)

In the strictly understood conflict of laws, an incidental question In the strictly understood conflict of laws, an incidental question arises only arises only after the law applicable to the principal question has after the law applicable to the principal question has been specifiedbeen specified

Law applicable to the incidental question is not governed by the Law applicable to the incidental question is not governed by the same law as applied to the principal questionsame law as applied to the principal question

When Does It Really Matter?When Does It Really Matter?

Problem: if the law applicable to the Problem: if the law applicable to the principal questionprincipal question is is foreign foreign lawlaw, do we have to apply , do we have to apply conflicts rule of the forum conflicts rule of the forum (here: the Polish (here: the Polish

one –one –independent connectionindependent connection), or should it be rather the ), or should it be rather the

conflicts rule of the foreign lawconflicts rule of the foreign law ( (dependent connectiondependent connection) in ) in question?question?

Applying foreign conflicts rules may sometimes prevent the Polish Applying foreign conflicts rules may sometimes prevent the Polish judge from invalidating the relationship or status in questionjudge from invalidating the relationship or status in question

In our case:In our case: The principal question (succession after the deceased American) The principal question (succession after the deceased American)

governed by governed by foreignforeign law – e.g. of the state of Oklahoma law – e.g. of the state of Oklahoma The answer to the question which law applies potentially differs (validity 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 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 Polish PIL but under the New York law it is generally the law of the country where the ceremony has taken place)country where the ceremony has taken place)

Time FactorTime Factorin the Conflict of Lawsin the Conflict of Laws

The Impact of Time FactorThe Impact of Time Factoron the Conflict of Lawson the Conflict of Laws

The time may impact the connection between the The time may impact the connection between the

situation in question and the law applicable to it in situation in question and the law applicable to it in two two

dimensionsdimensions:: in a larger sensein a larger sense – – the conflict law in a country of the the conflict law in a country of the

court's seat may changecourt's seat may change (e.g. replacing the old Polish PIL (e.g. replacing the old Polish PIL

Act in 2011, adopting new European Regulations)Act in 2011, adopting new European Regulations) in a stricter sensein a stricter sense – the parties or authorities of a state – the parties or authorities of a state

may impact on the connection (e.g. a party who had the may impact on the connection (e.g. a party who had the

nationality of a country A may acquire citizenship of a nationality of a country A may acquire citizenship of a

country B, he or she may move an object of rights, etc.)country B, he or she may move an object of rights, etc.)

Legislative ChangesLegislative Changesin the Conflict of Lawsin the Conflict of Laws

Well-established principle of non-retroactivity of laws:Well-established principle of non-retroactivity of laws: Article 3 of the Polish Civil Code: Article 3 of the Polish Civil Code: The statute shall have The statute shall have

no retroactive effectno retroactive effect, unless it results from its wording , unless it results from its wording or purpose.or purpose.

Article 2 of the Polish Constitution: Article 2 of the Polish Constitution: The Republic of The Republic of Poland is a democratic State Poland is a democratic State ruled by law ruled by law and and implementing principles of social justice.implementing principles of social justice.

Prospective effect of the new law – to apply it to factual Prospective effect of the new law – to apply it to factual situations which were completed after its enactmentsituations which were completed after its enactment

E.g. the SC judg. 14/2/2013, E.g. the SC judg. 14/2/2013, II CSK 294/12II CSK 294/12, OSP , OSP [Polish [Polish Courts Case Law]Courts Case Law] 2014/1, issue 3 – the intertemporal 2014/1, issue 3 – the intertemporal questions of PIL settled in accordance with the general questions of PIL settled in accordance with the general principles of intertemporal law, as enshrined in the Civil principles of intertemporal law, as enshrined in the Civil Code and its Introductory LawCode and its Introductory Law

Change of the Connecting Change of the Connecting FactorFactor

Plays a role only if the connecting factor is Plays a role only if the connecting factor is variablevariable (each and (each and every law applicable is taken into account):every law applicable is taken into account): Article 11(1) PILA: law of one's nationality from any particular Article 11(1) PILA: law of one's nationality from any particular

moment governs the capacity of a natural personmoment governs the capacity of a natural person Article 51 PILA: law of the spouses' common current Article 51 PILA: law of the spouses' common current

nationality governs the effects of marriage (except for marital nationality governs the effects of marriage (except for marital agreements)agreements)

The The immutable (invariable)immutable (invariable) applicable law – if it is provided for applicable law – if it is provided for the application of the law from a particular moment in time (e.g. the application of the law from a particular moment in time (e.g. the moment of birth, conclusion of marriage, one's death, etc.), the moment of birth, conclusion of marriage, one's death, etc.), e.g. Articles 52(2) or 64 PILAe.g. Articles 52(2) or 64 PILA

Judg. SC 15/5/2008, Judg. SC 15/5/2008, I CSK 541/07I CSK 541/07, OSNC [SCRep.-Civ.] 2009/9, , OSNC [SCRep.-Civ.] 2009/9, issue 125: no legal relevance for the change of the nationality by issue 125: no legal relevance for the change of the nationality by the spouses after the conclusion of the marital agreementthe spouses after the conclusion of the marital agreement

Case StudiesCase Studies

ExampleExample No. 1 No. 1In mid 2010, a Polish national Maria C. concludes a marital property agreement In mid 2010, a Polish national Maria C. concludes a marital property agreement with her French husband Sébastien D. Parties choose the regime of the with her French husband Sébastien D. Parties choose the regime of the separation of assets and the French law as applicable. One year later Maria C. separation of assets and the French law as applicable. One year later Maria C. acquires also the French nationality and gives up the nationality of Poland. Does acquires also the French nationality and gives up the nationality of Poland. Does it have any impact on the law governing marital property?it have any impact on the law governing marital property?

ExampleExample No. 2 No. 2An inhabitant of Wroclaw (south-western Poland) Jan S. bought An inhabitant of Wroclaw (south-western Poland) Jan S. bought in Poland in Poland a well-a well-kept BMW car with "German papers" at favorable price. After two-year period of kept BMW car with "German papers" at favorable price. After two-year period of its possession in Polandits possession in Poland he left for Switzerland, where he spent one year and a he left for Switzerland, where he spent one year and a half. One day, when he was coming back to Poland, his car was stopped and half. One day, when he was coming back to Poland, his car was stopped and seized by the German police because it had probably been stolen on the territory seized by the German police because it had probably been stolen on the territory of the of the BundesrepublikBundesrepublik. May Jan S. claim it back on the assumption of the . May Jan S. claim it back on the assumption of the bona bona fidefide three-year possession (Article 169(2), 174 of Polish Civ.c.), taking into three-year possession (Article 169(2), 174 of Polish Civ.c.), taking into consideration that the Swiss consideration that the Swiss ZivilgesetzbuchZivilgesetzbuch provides for a much longer, five- provides for a much longer, five-year usucapion period?year usucapion period?

Case Study No. 1Case Study No. 1

At the time Maria C. entered into the marital At the time Maria C. entered into the marital agreement, the current Law of 2011 had not yet agreement, the current Law of 2011 had not yet been in force (it was enacted on 16/05/2011)been in force (it was enacted on 16/05/2011)

The old Law of 1965 did not foresee the The old Law of 1965 did not foresee the professio professio iuris iuris (choice of law by the parties) for marital (choice of law by the parties) for marital contractscontracts

Connecting factors of Article 17 PILA 1965: Connecting factors of Article 17 PILA 1965: common nationality common nationality at the time of entering into at the time of entering into agreement agreement common domicile common domicile lex forilex fori

After the enactment of the new Law nothing has After the enactment of the new Law nothing has changed, it is still governed by the law as of the changed, it is still governed by the law as of the day the marital agreement was concludedday the marital agreement was concluded

Case Study No. 2Case Study No. 2

The car has been moved through the state frontiersThe car has been moved through the state frontiers Article 41 PILA operates with a variable connecting Article 41 PILA operates with a variable connecting

factor (factor (lex situs rei lex situs rei from each and every time)from each and every time) The Polish and Swiss Civil Codes do not provide for The Polish and Swiss Civil Codes do not provide for

equal periods of the possession in order to acquire equal periods of the possession in order to acquire a title on a movable (Poland – 3 years, Switzerland a title on a movable (Poland – 3 years, Switzerland – 5 years)– 5 years)

In Poland, the period had not expired yet, in In Poland, the period had not expired yet, in Switzerland the case was similarSwitzerland the case was similar

Jan S. has not acquired the car's ownershipJan S. has not acquired the car's ownership

Thanks for your Thanks for your attention!attention!