IntroductionIntroductionto Polish Private to Polish Private International LawInternational Law

5th Classes5th 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

Public Policy Exception Public Policy Exception ((ordre publicordre public))

Function and PurposeFunction and Purpose

Article 7 PILA: Article 7 PILA: A foreign law shall not apply, if its application would lead to A foreign law shall not apply, if its application would lead to effects incompatible with the effects incompatible with the fundamental principles of law of the Republic of fundamental principles of law of the Republic of PolandPoland..

Article 21 Rome I: Article 21 Rome I: The application of a provision of the law of any country The application of a provision of the law of any country specified by this Regulation may be refused only if such application is specified by this Regulation may be refused only if such application is manifestly incompatible with the public policymanifestly incompatible with the public policy (ordre public) of the forum. (ordre public) of the forum.

Why it is called an Why it is called an "exception""exception" of of ordre publicordre public?? „„Roots" and foundations, principles which Roots" and foundations, principles which determine the country’s determine the country’s

self-identityself-identity Expressed in several provisions of fundamental laws (quite often widely Expressed in several provisions of fundamental laws (quite often widely

scattered):scattered): Constitution of PolandConstitution of Poland International treaties (esp. human rights conventions)International treaties (esp. human rights conventions) Codes (Civil Code, Family Code, Criminal Code)Codes (Civil Code, Family Code, Criminal Code)

Case StudiesCase Studies

Case Study No. 1:Case Study No. 1: A national of an Arabic country wants to marry a women of Polish A national of an Arabic country wants to marry a women of Polish

nationality. Both are single, yet according to the man's national law nationality. Both are single, yet according to the man's national law he could have even 4 wives, provided that those previously married he could have even 4 wives, provided that those previously married give their consent (SC resolution 22/06/1972, III CZP 34/72).give their consent (SC resolution 22/06/1972, III CZP 34/72).

Case Study No. 2:Case Study No. 2: Polish civil court adjudicates on the damages for the defamation in a Polish civil court adjudicates on the damages for the defamation in a

press article. The injured American claims for $250,000 of actual press article. The injured American claims for $250,000 of actual damages and $2,000,000 as "punitive damages" (see damages and $2,000,000 as "punitive damages" (see SC decision SC decision 11/10/2013, I CSK 697/1211/10/2013, I CSK 697/12).).

Case Study No. 3:Case Study No. 3: Two Syrian Catholic Christians submit a claim for the divorce by Two Syrian Catholic Christians submit a claim for the divorce by

mutual consent. According to their common personal law (the Canon mutual consent. According to their common personal law (the Canon law of the Eastern Churches), the divorce is not possible. Should the law of the Eastern Churches), the divorce is not possible. Should the court find for them relying on the public policy exception?court find for them relying on the public policy exception?

Case Study No. 1Case Study No. 1

The principle of monogamy is a fundament of social order The principle of monogamy is a fundament of social order in Poland (as well as the Western culture as a whole)in Poland (as well as the Western culture as a whole)

The Supreme Court's mistake: to oblige the trial court to The Supreme Court's mistake: to oblige the trial court to scrutinize the foreigner's ability to marry taking into scrutinize the foreigner's ability to marry taking into account the difference between the future legal status of account the difference between the future legal status of the Polish wife after the possible marriagethe Polish wife after the possible marriage

Simple differences between the Polish and foreign Simple differences between the Polish and foreign substantive law do not sufficesubstantive law do not suffice

The effect of application of foreign law in a given case The effect of application of foreign law in a given case mattersmatters

Simple possibility of the poligamy is too weak to justify the Simple possibility of the poligamy is too weak to justify the exception – exception – no room for the public policy of the forumno room for the public policy of the forum

Case Study No. 2Case Study No. 2

"Punitive damages""Punitive damages" – a never-ending story of – a never-ending story of divergencies between defamation laws of the civil law divergencies between defamation laws of the civil law and common law countriesand common law countries

Functions of the punitive damages: to punish the Functions of the punitive damages: to punish the defendant for his or her outrageous conduct, to deter defendant for his or her outrageous conduct, to deter him or her and others from doing the same in futurehim or her and others from doing the same in future

Sum of money not corresponding to the actual Sum of money not corresponding to the actual detriment, personal or pecuniarydetriment, personal or pecuniary

Supreme Court found it principally impossible to find for Supreme Court found it principally impossible to find for the plaintiff due to the the plaintiff due to the principle of proportionalityprinciple of proportionality (certain relation of money claim to the violated interest)(certain relation of money claim to the violated interest)

Case Study No. 3Case Study No. 3

Divorce – a problematic legal institutionDivorce – a problematic legal institution Article 18 of the Constitution: principle of the family and Article 18 of the Constitution: principle of the family and

marriage protecton, no internationally recognized principle marriage protecton, no internationally recognized principle of dissolubility of marriage (such a principle may be of dissolubility of marriage (such a principle may be accepted by particular legal systems) – see Article 8 of the accepted by particular legal systems) – see Article 8 of the 1970 Hague Convention on the Recognition of Divorces and 1970 Hague Convention on the Recognition of Divorces and SeparationsSeparations

The principle of the individual liberty (Article 31(1) of the The principle of the individual liberty (Article 31(1) of the Consitution)Consitution)

Which of these principles should prevail?Which of these principles should prevail? The The 'positive' effect 'positive' effect of the public policy exceptionof the public policy exception: :

the foreign law fully substituted by the domestic onethe foreign law fully substituted by the domestic one

Law EvasionLaw Evasion((fraus legisfraus legis))

Function and PurposeFunction and Purpose

A "unicorn" of the private international law (often discussed, hardly A "unicorn" of the private international law (often discussed, hardly ever seen)ever seen)

A deliberate act of the party (or parties), who want to receive more A deliberate act of the party (or parties), who want to receive more that thay would have received had a given law been appliedthat thay would have received had a given law been applied

Parties’ manipulations concerning the point of connectionParties’ manipulations concerning the point of connection French French Princesse de Bauffremont Princesse de Bauffremont case (1878):case (1878):

A French separated aristocrat intended to re-marry a foreignerA French separated aristocrat intended to re-marry a foreigner Divorce then forbidden in France, hence an escape in the form of Divorce then forbidden in France, hence an escape in the form of

naturalization in a small German principality – German separated catholics naturalization in a small German principality – German separated catholics treated as divorced by lawtreated as divorced by law

Under the new personal law, she could re-marry in BerlinUnder the new personal law, she could re-marry in Berlin In France, courts found against Mrs de Bauffremont holding she had been In France, courts found against Mrs de Bauffremont holding she had been

still marriedstill married Denial ofDenial of the recognition as to the change the recognition as to the change of the connecting factorof the connecting factor

Hidden Issue of the PILHidden Issue of the PIL

Procedural issues play a predominant roleProcedural issues play a predominant role Forum shopping Forum shopping – sometimes forum deliberately chosen in – sometimes forum deliberately chosen in

order to make the court adjudicate under the law which best order to make the court adjudicate under the law which best 'fits' the plaintiff's needs and expectations'fits' the plaintiff's needs and expectations

Negative labeling of the Negative labeling of the forum shopping,forum shopping, trials of preventing trials of preventing parties from such practices (mostly ineffective)parties from such practices (mostly ineffective)

Weak points of the theory of the law evasionWeak points of the theory of the law evasion Rarely possible to prove the 'bad faith' of the partiesRarely possible to prove the 'bad faith' of the parties If the court has a non-exclusive jurisdiction and there is a foreign If the court has a non-exclusive jurisdiction and there is a foreign

judgment, it seems hard to contest recognition and enforcement judgment, it seems hard to contest recognition and enforcement of the latterof the latter

The merits of the foreign judgment basically are not subject to The merits of the foreign judgment basically are not subject to judicial scrutiny in Poland (prohibition of judicial scrutiny in Poland (prohibition of révision au fondrévision au fond))

Application of Foreign Application of Foreign LawLaw

Scope of the Polish Courts'Scope of the Polish Courts'Duties and ObligationsDuties and Obligations

How do the courts proceed with foreign laws in your countries?How do the courts proceed with foreign laws in your countries? Obligatory character of the Polish conflict law rules (remarks on Obligatory character of the Polish conflict law rules (remarks on

the German concept of the the German concept of the "fakultatives Kollisionsrecht""fakultatives Kollisionsrecht")) Application of a foreign law: not the 'fact' but just the 'law'Application of a foreign law: not the 'fact' but just the 'law' Ex officio Ex officio applying of the foreign applicable law (Article 1143(1) applying of the foreign applicable law (Article 1143(1)

Code of Civil Procedure)Code of Civil Procedure) The party is not obliged to request the application of the foreign The party is not obliged to request the application of the foreign

lawlaw The court has to take it into consideration at any stage of The court has to take it into consideration at any stage of

proceedings (even on appeal)proceedings (even on appeal) Court's errors in (mis)applying a foreign law are appealable and Court's errors in (mis)applying a foreign law are appealable and

also (which is not so obvious in many Western countries) subject also (which is not so obvious in many Western countries) subject to the revision by the Supreme Courtto the revision by the Supreme Court

Selected General PrinciplesSelected General Principles

Foreign law is still the law, not the „fact” of the caseForeign law is still the law, not the „fact” of the case A limited scope of the principle A limited scope of the principle jura novit curia jura novit curia ("A court ("A court

knows the law")knows the law") The content of the law has to be proved by the court The content of the law has to be proved by the court

(irrespective of the parties' motions or contentions)(irrespective of the parties' motions or contentions) The means used:The means used:

The information on the content of the foreign law and legal The information on the content of the foreign law and legal practice – furnished by the Ministry of Justice)practice – furnished by the Ministry of Justice)

Convenience of the system created by the Council of Europe Convenience of the system created by the Council of Europe according to the 1986 London Convention on Information on according to the 1986 London Convention on Information on Foreign LawForeign Law

Expert witnesses in the field of foreign law (Article 1143(3) Expert witnesses in the field of foreign law (Article 1143(3) CCP)CCP)

Emergency RulesEmergency Rulesof the Choice of Lawof the Choice of Law

Article 3(1) PILAArticle 3(1) PILA: : If this act provides for the applicability of If this act provides for the applicability of the law of nationality the law of nationality and it is and it is not possible to establish not possible to establish the the nationality of a given person, or if he or she does not have the nationality of a given person, or if he or she does not have the nationality of any state, or it is not possible to establish nationality of any state, or it is not possible to establish the the content of the law of nationalitycontent of the law of nationality, then the law of the state in , then the law of the state in which the given person is domiciled shall apply; otherwise, the which the given person is domiciled shall apply; otherwise, the law of the state in which he or she has habitual residence will law of the state in which he or she has habitual residence will be applied.be applied. […] […]

Article 10 PILA: Article 10 PILA: (1) If it is (1) If it is not possible to establish the not possible to establish the circumstances upon which the application of the foreign law circumstances upon which the application of the foreign law dependsdepends, the law of the state with which the legal relationship , the law of the state with which the legal relationship has the closest connection applies. (2) If it is has the closest connection applies. (2) If it is not possible to not possible to ascertain the content of the foreign law ascertain the content of the foreign law within a reasonable within a reasonable time, Polish law applies.time, Polish law applies.

Thanks for your Thanks for your attention!attention!