PIL concise

Subject matter of PIL - Nature of relations

Private relations (property/non-property) with an "international" character (foreign element).

Subject matter of PIL - Main non-powerful entities

Legal persons, natural persons, intl NGOs, MNCs, subjects of federal/unitary states.

Subject matter of PIL - Optional entities

States, state-like entities, intergovernmental orgs, nations struggling for independence.

Subject matter of PIL - Role of optional entities

Can be parties to PIL relations when interacting with main subjects.

Transnational corporations (TNCs) - General Definition

Global businesses operating in multiple countries.

Transnational corporation (TNC) - Specific Definition

Owns/controls production/services in at least one country other than home country.

Transnational corporations (TNCs) - Examples

Apple, Microsoft, Amazon, Walmart, Sony.

Difference: TNCs vs MNCs - TNCs

Operate in many countries, no centralised management system.

Difference: TNCs vs MNCs - MNCs

Operate in many countries, with a centralised management system.

Unification in PIL - Main purpose of international treaties

Unify legal regulation.

Unification in PIL - Application of treaties

Directly applicable in national law, no special domestic acts needed.

Unification in PIL - Types of intl treaties - Multilateral

Multiple countries establishing common rules.

Unification in PIL - Types of intl treaties - Bilateral

Two countries addressing specific conflicts of law.

Unification in PIL - Types of intl treaties - Universal

Accepted by nearly all countries, setting global standards (e.g., UN Charter).

Unification in PIL - Types of intl treaties - Regional

Region-specific, harmonizing laws within the region.

Unification in PIL - Unification of substantive legal norms

Uniform rules directly governing rights/obligations in intl transactions.

Unification in PIL - Unification of conflict of laws rules

Common rules for determining applicable jurisdiction's laws.

Unification in PIL - Priority: Specific vs General treaties

Special norms prevail over general norms.

Unification in PIL - Priority: Bilateral vs Multilateral treaties

Bilateral treaties prevail over multilateral.

Unification in PIL - Priority: Substantive vs Conflict rule treaties

Treaties unifying substantive norms prevail over those unifying conflict rules.

Lex Mercatoria - General Definition

Internationally accepted trade rules, principles by merchants.

Lex Mercatoria - Nature

"Soft law"; autonomous system of intl trade regulation, separate from national systems.

Lex Mercatoria - Advantages

Advisory, non-state regulation (freedom of contract), practice-developed, adaptable.

Lex Mercatoria - Examples of sources

Resolutions/recommendations of intl orgs (e.g., UNIDROIT Principles).

Lex Mercatoria - Application Condition

Contract must state governance by general principles of law/lex mercatoria.

Lex Mercatoria - Relation to National Law

Cannot replace national law; autonomy of will limited.

Lex Mercatoria - Intl Treaties as a Source

Only in states not party to them.

Non-state regulation in PIL - Role

Fills gaps, provides flexibility (commerce/technology), enables adaptation, fosters cooperation.

Non-state regulation in PIL - International custom

Binding rule from repeated practice, unwritten (e.g., trade practices).

Non-state regulation in PIL - International commercial law (lex mercatoria)

Intl trade usages/customs by merchants.

Non-state regulation in PIL - Legal doctrine

Scholarly interpretations/analyses of law.

Non-state regulation in PIL - Analogy of law/statute

Applying existing legal principles to new, uncovered situations.

Role of Intl Orgs in PIL - General Role

Develop principles, recommendations, model laws, treaties for cross-border legal issues.

Role of Intl Orgs in PIL - HCCH

Principles on Choice of Law (Intl Commercial Contracts), family/child protection conventions.

Role of Intl Orgs in PIL - UNIDROIT

Principles of Intl Commercial Contracts, conventions, model laws for private law harmonization.

Role of Intl Orgs in PIL - UNCITRAL

Model Law on Intl Commercial Arbitration, modernizing/harmonizing intl trade law.

Role of Intl Orgs in PIL - ICC

INCOTERMS, Uniform Rules for Demand Guarantees, forum for intl trade/investment.

Conflict of laws rule - Concept

Rule determining applicable state's law for private law relations with a foreign element.

Conflict of laws rule - Substantive rule structure - Hypothesis

Conditions for rule application.

Conflict of laws rule - Substantive rule structure - Disposition

The rule itself.

Conflict of laws rule - Substantive rule structure - Sanction

Consequence for non-compliance (part of substantive law).

Conflict of laws rule - Conflict rule structure - Scope

Content of legal relationship to be regulated.

Conflict of laws rule - Conflict rule structure - Binding

Law to be applied.

Conflict of laws rule - Conflict rule structure - Sanction

Not part of conflict rule; exists in referred competent jurisdiction.

Conflict of laws rule - Types (will expression) - Mandatory

Single conflict of laws attachment.

Conflict of laws rule - Types (will expression) - Alternative

Multiple law options; court chooses.

Conflict of laws rule - Types (will expression) - Cumulative

Foreign law possible, but national law compliance can prevent invalidity.

Conflict of laws rule - Types (will expression) - Dispositive

Parties choose (e.g., "unless otherwise specified").

Conflict of laws rule - Types (form) - Unilateral

Applies only national law (forum law); mandatory.

Conflict of laws rule - Types (form) - Bilateral (Multilateral)

Applies national, foreign, or intl law; various forms. "Attachment formula."

Conflict of laws rule - Types (legal form) - Domestic

National law origin.

Conflict of laws rule - Types (legal form) - Unified

Intl treaty origin; act as domestic law.

Personal law of legal entity - Incorporation theory

Law of incorporation state (UK, Russia, China, India, USA).

Personal law of legal entity - Settlement theory

Law of administrative center state (France, Belgium, Ukraine).

Personal law of legal entity - Effective place of business theory

Law of main economic activity state (Syria, Algeria); for offshore.

Personal law of legal entity - Control theory

Law of state controlling activities (developing countries, 1965 Washington Conv.); for MNEs.

Personal law of legal entity - Mixed criterion

Combination of factors (incorporation, location, business, control) (Italy, Canada, Egypt).

Autonomy of will - Scope

Contract conclusion, validity, rights/obligations, interpretation, enforcement, liability, termination.

Autonomy of will - Foundational principle

Parties' freedom to choose applicable law is a cornerstone (Rome I).

Autonomy of will - Relations governed

Formal, property, tort, etc.

Autonomy of will - Threefold role in PIL

Source of PIL, basic special principle, connecting factor.

Autonomy of will - Feature: Timing of choice

At contract conclusion or later.

Autonomy of will - Feature: Scope of choice

Whole contract or parts.

Autonomy of will - Feature: Expression of choice

Explicit or clearly derived.

Autonomy of will - Feature: Retroactive effect

Choice made after conclusion is retroactive.

Autonomy of will - Feature: Effectiveness

Effective from conclusion, no prejudice to third parties.

Autonomy of will - Feature: No foreign element needed

Foreign law can be chosen without it.

Autonomy of will - Restriction: Good faith/lawfulness

Choice must be in good faith and lawful.

Autonomy of will - Restriction: Public policy

Choice must not violate forum state's public policy.

Autonomy of will - Restriction: Circumvention of law

Choice must not aim to evade mandatory rules.

Autonomy of will - Restriction: Closely connected law

Choice must not prejudice non-derogable laws of a more closely connected country.

Autonomy of will - Restriction: USA approach

Choice limited to objectively connected legal systems (alternative: third-country law for equality).

Establishing foreign law - Method

Per official interpretation, practice, doctrine of the foreign state.

Establishing foreign law - Basic evidence

Expert opinions.

Establishing foreign law - Practice in Spain

Joint opinion of two lawyers.

Establishing foreign law - Practice in UK

Witness testimony.

Establishing foreign law - Practice in Russia

Court inquiries to authorities, experts; European Convention on Info on Foreign Law.

Incorrect foreign law determination - Consequence (Russia, content not found)

Lex fori (domestic law) may apply.

Incorrect foreign law determination - Consequence (Italy/Portugal, content not found)

Most closely related foreign law may apply.

Incorrect foreign law determination - Consequence (Misapplication)

Judgment revision/annulment, non-recognition of foreign judgment/award.

Incorrect foreign law determination - Consequence (Obligation to establish states)

Denial of claim not allowed (Japan, Georgia, Austria, Hungary).

Incorrect foreign law determination - Consequence (US)

Failure to prove doesn't automatically mean dismissal.

Incorrect foreign law determination - Consequence (Parties' responsibility states)

Claim dismissal possible if content not established (UK, France).

Public policy - General principle

Refusal of foreign rule if consequences conflict with forum's public policy (consequences, not law itself).

Public policy - Definition

Fundamental norms ensuring state stability (economic, political, social, legal), influenced by moral/cultural aspects.

Public policy - Other states' public policy

Court not obliged (but may) consider it.

Public policy - Types: Substantive

Foreign substantive rules' consequences must not be incompatible with domestic legal order.

Public policy - Types: Procedural

Recognition/enforcement of foreign decisions' consequences must not be incompatible with domestic legal order.

Public policy - Types: Positive

Important domestic rules that cannot be circumvented by foreign law (super-mandatory rules).

Public policy - Types: Negative (Reservation)

Foreign law not applied if application contrary to vital national provisions.

Public policy clause - Application criteria

Consequences conflict with super-mandatory norms, prejudice sovereignty/security, affect large social groups, violate constitutional rights.

Super-mandatory norms - Origin

Direct indication in norm OR deduced from norm's connection/significance to legal relationship (e.g., consumer protection).

Public policy clause - Problems

"Rubber-stamp" category, potential misuse.

Public policy clause - Consequence of refusal

Relevant national law applies.

Public policy clause - Issue: No relevant national rule

Problem if no such rule or relationship unknown to national law.

Overriding super-mandatory rules - Definition

Norms that become super-mandatory by direct indication or specific connection/significance.

Overriding super-mandatory rules - Examples

Consumer protection, currency/competition law, import/export bans, securities rules.

INCOTERMS - Definition

ICC publication of intl trade practices in supply contracts.

INCOTERMS - Role of ICC

Summarizes trade practices, formulates best standards.

INCOTERMS - What they DON'T regulate

Non-carriage relations; title transfer (only risk transfer). Not a contract, but part of one.