Introduction to European Union Law

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  • Topic: Conflict of laws, Law, Common law
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Private International Law – Study Notes

The most important instruments of European Union Law in terms of this course are the following: Brussels Convention and Brussels I Regulation (i.e. 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters) (Schedule I to the Civil Jurisdiction and Judgments Act 1982) and Brussels I Regulation (Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) *

Rome Convention on the Law Applicable to Contractual Obligations (1980) (Contracts (Applicable Law) Act 1990 in Schedule 1 of the Act) and the Regulation of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I) 593/2008 in June 2008, which will enter into force from 17 December 2009 *

Rome II Regulation (i.e. Regulation (EC) No 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations) *
Brussels II bis Regulation (Brussels II bis Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000) *

The 1980 Hague Convention on the Civil Aspect of International Child Abduction *
Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations OJ 2009 L7/1.

The prominence of different connecting factors varies depending on which EU instrument is relevant in a particular case. For instance, domicile plays no role in matters of parental responsibility but is slightly more prominent for purposes of divorce jurisdiction, at least in the context of the UK and Ireland. It has a very prominent role to play in the context of the Brussels I Regulation, although its meaning differs depending on whether it is applied in the context of civil and commercial matters or in divorce matters. Habitual residence is very prominent when it comes to divorce jurisdiction, jurisdiction in matters of parental responsibility and jurisdiction in respect of abducted children. Choice of court is a prominent connecting factor in jurisdiction over civil and commercial matters. Terms and terminology

There is a basic terminology to Private International Law that every student must come to grips with. Examples include: “foreign law”: legal system of any territory other than Scotland. The law applying in Scotland is its domestic law, and the law applying in all other legal units of the world is foreign law as far as the Scottish legal system is concerned. “applicable law” (rules of): the rules on applicable law are known as "conflict-of-law rules" and aim to determine which of the laws of the different countries will apply in a given case. Applicable law is generally determined on the basis of connecting factors or the lex fori (the national substantive law of the country having legal competence). The applicable law is identified by means of a methodology involving the steps of establishing which court has jurisdiction, which category of law and which connecting factor are involved so that the law governing the cause of action is revealed and can be applied. “choice of jurisdiction”: the principles and rules applied by courts in order to determine the proper jurisdiction or venue for legal proceedings. “choice of law”: the principles and rules applied by courts in order to determine the law applicable to one or more of the legal issues to be decided. “comity”: The recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard to both international duty and convenience, and to the rights of its own citizens or of other persons who are...
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