Introduction

to Polish Private
International Law
3rd Classes

Dr. Mateusz Pilich

Chair of Intl Private and Trade Law,
University of Warsaw
 Structure
of the Conflict Law Rules
(A Supplement)
 Law applicable vs Lex
Law applicable:
national law which governs a given relationship, it applies under the rule of conflict of laws
in many European languages (but not in English!) called in a similar way, e.g.: German: das
Statut, Dutch: statuut; Polish: statut; French: le statut; Spanish: el estatuto
Used to designate the product of application of the conflict of laws rule
We say in English e.g. the "law applicable to contracts" but in Spanish we may say "el
estatuto contractual", in Dutch "het contractuele statuut", in German "das Vertragsstatut",
in Polish "statut kontraktowy"
Lex:
means "the law" in Latin
Commonly used together with a proper Latin noun in the genitive, in order to denote the
connecting factor
E.g. Article 11 (1) the applicable law is the law of one's nationality in Latin: lex
patriae; Article 41 (1) the applicable law is the law of the situation of tangible
property in Latin: lex situs rei or lex rei sitae
 Examples of Connecting
Factors
Name of the connecting factor
Nationality
Residence (domicile)
Habitual residence
Place (country) where the object is
situated
Place (country) where the act was
accomplished
Registered office of a company
Place where a company was
incorporated
Place of celebrating the marriage
Place of the damage
Choice of law by the parties
The connection is borrowed from
another conflicts law provision
Name of the law applicable
Law of nationality (of a natural
person, a spouse, a child,
etc.)
Law of the place of residence
Law of the place of habitual
residence
Law of the place where the object is
situated
Law of the country where the
juridical act was
accomplished
Law of the companys registered
office
Law where the company was
founded
Law of the place (country) where the
marriage was concluded
Law of the place where the damage
occurred
Law chosen by the parties
Law governing the act or the claim
itself
Law applicable in Latin Legal category - example
Lex patriae Capacity of natural persons (e.g.
Article 11(1) PIL)
Lex domicilii Capacity and personal status of
stateless persons and
Lex habitationis refugees Article 3 PIL
Lex rei sitae Rights in tangible objects (iura in
rem) Article 41(1) PIL
Lex loci actus Form of juridical acts Article
25(1), 2nd sentence PIL
Lex situs Corporations, other legal entities
and organisational units
Article 17 PIL
Lex incorporationis
Lex loci celebrationis Form of marriage Article 49(1)
PIL
Lex loci damni Article 4(1) Rome II Regulation
Lex voluntatis Article 3(1) Rome I Regulation,
Article 14(1) Rome II
Regulation
Lex causae Limitation of debts or actions the
prescription period Article
26 PIL
Certain Technical
Problems
 Characterization
in the Conflict of Laws
Case study No. 1

An Iraqi national Ali Hassan S. worked as a translator for the Polish troops. After accomplishing
his mission, he was evacuated to Poland together with his familiy. In December 2013 his wife
Fatima S. demanded a divorce decree, basing her claim on the contention that her husband
had not performed his duty to pay a dowry (al-mahr
(al-mahr),
), which is a kind of the 'price' for a bride in
the Arabic countries a 'consideration' for marrying a woman.
Case study No. 2

A rich Polish businessman Jan Z. is suffering from a mortal illness. Expecting the coming death,
he asks his lawyer to found a trust in Malta, where he has registered a limited liability company
and invested a considerable sum of money. Trust beneficiaries would be his three minor sons.
The wife of Jan Z. gets to know of her husband's intention and raises her objection against it.
Case study No. 3

The Polish national Adam C. is married with the German national Louise C. The couple lives in
Germany. After the death of Adam C., who instituted his Polish natural daughter as a
testamentary heir, the latter is sued by the widow for payment of the equalization of the
accrued gains ('Zugewinnausgleich'
('Zugewinnausgleich'),), i.e. the part of the value of the deceased spouse's
property in the case of the marriage termination.
 Roots of the Problem
Characterization called in other European languages as a "qualification" (so,
respectively, e.g. in the French, German, Spanish, Italian, Polish legal
vocabulary)
Looking for the law applicable, the court has always to choose a proper
conflicts rule (into which legal category the facts of the case are to be
placed?)
The object of the connection in the conflicts rule is described as a legal
category ("form of the marriage", "adoption", "contractual obligation",
"property", etc.)
Substantive laws of various countries differ as to their notions and systematics:
Similar legal institutions may be divergently classified
Sometimes the institution the court has to deal with may be even unknown to
the law of the forum
 Possible solutions
Case study No. 1
An unpaid dowry may be classified as (a) the gift under the contract (so a
'contractual obligation' Rome I); (b) marital property regime (Articles 51-52
PILA); (c) the issue governed by the law generally applicable to the grounds for
the divorce (Article 54 PILA)
Case study No. 2
Trust is a typically common law institution, yet unknown to the Polish
substantive law. From the standpoint of the private international law, the
relationship in question may be perceived as: (a) a contract; (b) a successoral
case (Article 64 ff PILA); (c) the property (Article 41 ff PILA).
Case study No. 3
According to the German Civil Code (BGB), the Zugewinnausgleich is a claim
based on the marital property regime, which may justify applying of Articles 51
and 52 PILA, or the case of successions.
 How to Proceed?
Subject-matter of the characterization proposals:
Substantive claim
Legal rule
Legal issue ("question of law")
Four 'schools of characterization':
Lege fori (according to the law of the court's seat) see Franz
Kahn/Etienne Bartin legal categories in conflicts rules to be understood in
accordance with Polish substantive law
Lege causae (according to the law applicable) the "vicious circle"
reproach
Autonomous methods:
Comparative approach see Ernst Rabel
Conflicts law of forum approach
Critical evaluation of the doctrine
 Renvoi
Case study decision of the Supr. Court
of 26 Jan. 2006, II CSK 124/05
A deceased French national died intestate.
She left an immovable property in Poland and
no living next-of-kin. Polish fiscus successfully
laid the claim to the immovable as her 'heir of
the last resort' according to the Polish Civil
Code. Rightly so?
 Meaning of renvoi
Renvoi a French term (no unique English one),
standing for "sending back", "remaining unsettled"
Differences among legal systems concerning points
of connection lead to negative conflicts
Our example: law applicable to successions: in
Poland basically national law of the deceased, in
France the law of his/her last domicile (movables)
or the law of the situation of property
(immovables), so the 'split successions' scheme
 Variants of renvoi
Renvoi au premier degr, or the remission
we are coming back to the initial
point (i.e. to lex fori)
Renvoi au second degr, or the
transmission the conflicts rule in the
system of law specified as applicable
refers to the law of a third country (e.g.
capability of an Englishman domiciled in Germany to sign
a promissory note in Poland)
 Example

Renvoi au premier degr

aw
al l
a tion
n
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c ea se
de rty
I L A pr ope
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4(2 ion
i c l e6 s i tuat
Ar t PIL

e nch
Fr
 Justification of renvoi
Designation of a law applicable has a general
meaning (we mind the whole system of the law as in force
in the country, incl. its conflicts rules)
Respect for the foreign sovereignty
Coordination of diverging connecting factors,
striving for the international harmony of decisions
In our example: the simple convenience of the
Polish court (why to apply foreign law, if one can
turn back to its own?)
 Renvoi in the Polish PIL
PIL Act 2011: Article 5 only the renvoi au 1er degr, no
reference to the third country's law (exception: Article 17(2)
PILA)
Exceptions from the rule, para. (2):
parties' choice of law;
formal validity of juridical acts;
Contractual or non-contractual obligations
EU Private International Law: generally no renvoi (the
substantive law specified directly, see Article 20 Rome I)
Conventions see Supr. C. decision of 14 Febr. 2013, II CSK
294/12 (1961 Hague Form of Int'l Wills Convention, Article 1 )
Thanks for your
attention!