Comprehensive Private International Law Exam Revision Notes

The Judicial Syllogism Methodology

Every answer in Professor Cuniberti’s exam must strictly follow the foundational logic of the Judicial Syllogism, adhering to the categorical steps of the Major Premise, Minor Premise, Application, and Conclusion. It is a critical requirement to never mix the determination of jurisdiction with the choice of law; these issues represent distinct legal hurdles and must always be addressed separately in the analysis. The $4$-Step Syllogism Blueprint begins with the Major Premise, where the student must state the legal source and the abstract rule applicable to the situation. For example, under Article $4(1)$ of the Brussels I bis Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. Following this, the Minor Premise isolates the relevant factual components of the case study. For instance, the defendant X might be an individual whose permanent home and center of activities are located in Thionville, France. The third step, Application, legally combines the factual minor premise with the abstract major premise. In this scenario, since France is an EU Member State and X is domiciled there, the abstract threshold of Article $4(1)$ is met. Finally, the Conclusion provides a clear, definitive, one-sentence answer to the specific question asked, such as confirming that French courts retain general international jurisdiction over the defendant.

International Jurisdiction and the Brussels I bis Regulation

Before a court can look at the applicable law, it must first determine its power to adjudicate under the Brussels I bis Regulation. The Gatekeeper Step involves evaluating the material and territorial scope. Under Article $1$, the material scope applies to civil and commercial matters but explicitly excludes revenue, customs, administrative matters, or acta iure imperii, which refers to state liability. Other exclusions include status and legal capacity of persons, succession, and arbitration. The territorial scope, defined in Article $4$, requires that the defendant be domiciled in an EU Member State. If the defendant is domiciled outside the EU, such as in the US, Ukraine, Japan, or Monaco, then Article $6(1)$ dictates that jurisdiction is governed by the national residual rules of the forum. In France or Luxembourg, this involves Articles $14$ and $15$ of the Civil Code, unless exclusive jurisdiction applies. Exclusive jurisdiction, defined under Article $24(1)$, applies regardless of domicile if the proceedings involve rights in rem in immovable property or tenancies of immovable property. In such cases, the courts of the Member State where the property is situated, known as the lex rei sitae, have exclusive jurisdiction.

Special Jurisdiction in Contractual and Tort Matters

In contractual disputes, the plaintiff can bypass Article $4$ and invoke Article $7(1)$ of the Brussels I bis Regulation to sue in the place of performance of the obligation in question. For the sale of goods, under Article $7(1)(b)$ ($1$st indent), this is the place in a Member State where the goods were delivered or should have been delivered. For the provision of services, defined in Article $7(1)(b)$ ($2$nd indent), it is the place where services were provided or should have been provided. According to the Corman-Collins Criteria, ongoing commercial relationships like distribution agreements must be checked for positive activity and an element of remuneration or logistical advantage to be characterized as a service. For residual contracts not involving goods or services, Article $7(1)(a)$ follows the De Bloos and Tessili approach, which identifies the specific obligation breached and determines its place of performance according to the law applicable to the contract. In matters relating to tort, delict, or quasi-delict, Article $7(2)$ allows a person to be sued in the place where the harmful event occurred or may occur. The Mines de Potasse d'Alsace case established a bifurcated rule allowing the plaintiff to choose between the forum loci delicti commissi, which is the place of the event giving rise to the damage, or the forum loci damni, where the damage manifested. For internet infringements, the eDate Advertising and Martinez rules establish that for cross-border internet harm like defamation, the plaintiff can sue for $100\%$ of global damages in the Member State where their center of interests, usually their habitual residence, lies. Alternatively, they may use a mosaic approach, suing for localized harm in any territory where the content was accessible.

Parallel Litigation and Systemic Dynamics

Intra-EU Lis Pendens is governed by Article $29$ to prevent conflicting judgments. This rule states that where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until the jurisdiction of the first court is established. This requires a Triple Identity Test: the same parties, the same object or remedy sought, and the same cause or underlying factual/legal basis. The Tatry Principle specifies that an action for a negative declaration of non-liability shares the same object and cause as a subsequent action for damages. Furthermore, the Gasser Principle holds that systemic delays or structural judicial backlogs in the court first seised cannot be used as an excuse by the second court to bypass the mandatory stay. In contrast, Article $33$ deals with Third-State Lis Pendens, where the EU court has discretion to stay if a case was pending before a non-EU court first, the third-state judgment will be capable of recognition and enforcement, and a stay is necessary for the proper administration of justice. Regarding anti-suit injunctions, the Turner and West Tankers cases prohibit an EU Member State court from ordering a party to halt proceedings in another Member State, as this violates the principle of mutual trust, or confiance mutuelle, and strips the sister court of its competence to determine its own jurisdiction.

Choice of Law Mechanics and Characterization

Once jurisdiction is established, the court must select the applicable substantive law through characterization, also called qualification. This involves classifying the legal problem into a specific box, such as Contract, Tort, Succession, or Filiation. Primary Characterization is generally done lege fori, according to the legal concepts of the forum. However, for EU Regulations like Rome I and Rome II, characterization must be autonomous, known as lege europae, meaning concepts are defined uniformly by the Court of Justice of the European Union (CJEU). A classic case study in characterization is Caraslanis, where the French Cour de cassation had to decide if a mandatory religious marriage ceremony was a matter of form or substance; it was characterized lege fori as form, pointing to the lex loci celebrationis. Another example is Levy v. Daniels’ U-Drive, which warns against circular reasoning in characterizing liability. In contracts, the Rome I Regulation establishes Party Autonomy under Article $3(1)$, giving parties total freedom to choose the law. Under EU law, they can choose a completely neutral law with no connection to the contract, whereas US law typically requires a reasonable relationship. However, Articles $6$ and $8$ limit this autonomy so it cannot deprive consumers or employees of the protective mandatory rules of their habitual residence or workplace.

Exceptions and Overriding Mechanisms

Overriding Mandatory Provisions, or lois de police, are defined in Article $9(1)$ of Rome I as provisions crucial for safeguarding a country’s public interests to the extent they apply regardless of the law otherwise applicable. Under Article $9(2)$, the forum court always has the absolute right to apply its own overriding mandatory provisions. In the Ingmar case, CJEU ruled that EU rules granting commercial agents mandatory post-contractual indemnities are overriding international rules that neutralize a contractual choice of Californian law if the agent operates in the EU. Under Article $9(3)$, foreign lois de police may only be given effect if the foreign country is the place of performance and the provisions render performance illegal. Otherwise, they can only be considered as factual elements, or un fait, to assess force majeure. The Public Policy Exception, or ordre public international, allows a court to refuse a foreign law if its application is manifestly incompatible with the forum's values. This requires a high threshold; mere legal differences are insufficient. If triggered, the legal vacuum is usually filled by substituting the substantive internal law of the forum, the lex fori. Finally, Renvoi involves a conflict rule pointing to a foreign country which then points back to the forum or a third country. Renvoi is excluded from Rome I and Rome II but applies in succession of real property or filiation. The Foreign Court Theory, as seen in In re Askew, aims for cross-border judicial harmony by placing the judge in the shoes of the foreign judge.

Framework for Differentiating Jurisdiction and Choice of Law

In Private International Law, a court follows a strict chronological sequence: determining jurisdiction first and choice of law second. the Brussels I bis Regulation answers the "Where" question of which country's courts have the judicial power to hear the case, while Rome I and Rome II address the "What" question regarding which substantive laws govern the dispute. If the defendant is domiciled in the EU, Brussels I bis (Article $4$ or Article $7$) is used. If the defendant is domiciled outside the EU, Article $6(1)$ directs the court to use national residual law, such as Articles $14$ and $15$ of the Civil Code. For choice of law, if the issue is a contractual obligation, the Rome I Regulation applies, focusing on Article $3$ for party autonomy or Article $4$ for default rules like the law of the seller's or service provider's habitual residence. If the dispute is a tort, the Rome II Regulation is used, specifically Article $4(1)$, which applies the law of the country where the damage occurs, the lex loci damni. For other matters like filiation or status, national choice-of-law rules apply, such as Article $311-14$ of the French Civil Code, which governs filiation by the national law of the mother on the day of the child's birth.

Specialized Regulations: Succession and Marriage

The European Succession Regulation (No $650/2012$) provides a general conflict rule in Article $21$, stating that the law applicable to the succession as a whole is the law of the country where the deceased had their habitual residence at the time of death. This promotes succession unity, governing both movable and immovable assets globally. Regarding marriage, the French Civil Code provides substantive and formal rules. Article $202-1$ states that substantive capacity, such as age and consent, is governed by the national law of each spouse, with a proviso that French law applies if it allows same-sex marriage and one spouse is French or resides in France. Article $202-2$ states that a marriage is formally valid if it complies with the lex loci celebrationis, the law of the place of celebration. In the case of a Greek national marrying a French national in a civil ceremony in Paris, a French court would characterize the ceremony as a matter of form rather than capacity. Consequently, French law applies under Article $202-2$, and the marriage remains valid despite Greek domestic law requiring a religious ceremony.