Appunti Conflict of Laws CEILS, Appunti di Diritto Internazionale Privato

Scarica Appunti Conflict of Laws CEILS e più Appunti in PDF di Diritto Internazionale Privato solo su Docsity! CONFLICT OF LAWS INTRODUCTION The three main issues covered by conflict of laws are:  choice of jurisdiction = the courts of which country can decide a cross-border case;  choice of law = the laws of which country need to be applied; and  recognition of foreign judgements. There is not necessarily a conflict in a strict sense among laws or jurisdictions. When interpretation is not possible, a choice must be taken, usually following the standard of hierarchy (of norms). Either the most specific or the most recent laws take precedent over the other ones. If the conflict is between the most specific law and the most recent one, the former prevails. The expression conflict of laws could be substituted by private international law. The main principle governing the relations among different legal systems is the principle of territoriality. The modern state is conventionally said to be born in 1648, after the Peace of Westphalia, before which there was no clear notion of state sovereignty; there were personal and territorial notions of jurisdiction, which were used alternatively according to convenience. Art. 3, It criminal code = Italian criminal law obliges all those, citizens or foreigners, who find themselves in the territory of the state, except for the exceptions provided for by domestic public law and international law. One of such exceptions is art. 7, It criminal code, according to which there are some crimes (ex. against the personality of the Italian state) for which Italian law is applicable, even if the crime is committed in foreign territory, by either a citizen or a foreigner. Usually there exists a connecting factor between the crime and the state: locus commissi delicti, active personality and/or passive personality. In a case of 1999 (R v. Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet) the UK House of Lords decided that a defendant could be extradited to Spain. Such request had been made by Spanish judges according to the principle of passive personality, as the defendant was accused of having tortured Spanish citizens. As this is believed to be an international crime, universal jurisdiction is allowed under it: any country could have asked for jurisdiction, but Spain had a connecting factor. In a case of 1927 (S.S. Lotus) the court ruled that since there was no provision on the non-possibility of Turkey to prosecute a French national, then by the norms of international law this was possible, as restrictions upon the independence of states cannot be presumed. There are doubts on the applicability of this concept in nowadays international context, where norms have arisen on the topic. When talking about private international law (PIL), we must be aware that we are dealing with domestic law rather than international law per se. Each and every state has its own rules of private international law. Indeed, a better name could be transnational private law. However, there exists a connection between private international law and public international law; such connection is quite recent, as in the past the two subjects were considered as overlapping. Indeed, also nowadays there are some cases which may involve both issues of public international law and private international law (ex. if one state does not recognise the existence of the other state whose jurisdiction is involved in a cross-border private case or in cases dealing with immunity). There is a trend towards the internationalisation of PIL, i.e. harmonisation of issues dealing with conflict of laws by way of public international law (ex. through treaties or EU regulations/directives). The Lotus principle applies to both public law and private law, but in public law it is more assertive (claim of jurisdiction or export of law - applied in the territory of a country and sometimes also outside - ex. with universal jurisdiction for international crimes), while in private law it is more recessive (dismissal of jurisdiction or import of law). This may be so because:  the reasons to apply criminal law to extraterritorial events are more cogent [ex. to ensure (correct) prosecution of crimes];  states desire not to hurt people by denying them rights and statuses gained abroad (ex. through marriage). The legal nature of such behaviour is not always clear. For civil law countries it is quite simple, as they have sovereignty over decisions of this kind; this is obvious now, but it has not always been like that (principle of territoriality). This idea was born in the Netherlands in XVII century. Another idea was born in this era, the one of comity: the idea that it is convenient to apply foreign law in a country's territory because of friendship. The legal status of this idea is debated. This principle still applies in some countries, such as the US. Some legal systems decided that the idea of comity works, but provided that the other country applies it as well (principle of reciprocity). This principle is still present in art. 1, It civil code. The Italian constitution limits the application of the principle of reciprocity: fundamental rights cannot be subjected to it. The openness to foreign legal systems may diverge from state to state, qualitatively speaking. However, not necessarily domestic law shies away; some domestic rules are to be applied, and some foreign rules cannot be applied, irrespective of the presence of valid connecting factors. SOURCES OF PRIVATE INTERNATIONAL LAW The main sources of PIL are domestic laws: single codes (ex. Italian law n. 218/1995 - this does not mean that relevant provisions cannot be present elsewhere, especially for specific situations, such as law n. 84/1983 on international adoption) or scattered provisions. These sources include:  true conflicts norms = they decide which laws apply in specific cases (ex. art. 7, It code of navigation states that the responsibility of the operator of a ship is ruled by the laws of the country of nationality of the ship itself, demonstrated by the flag it is exposing);  material PIL norms = they provide for a material solution to a given problem (ex. art. 116, It civil code states that if a foreigner wants to marry in Italy, they shall submit a document provided for by their country of nationality which states that they are able to get married); and  functional PIL norms = they provide the judge with the tools to make true conflicts norms functional [ex. rules on knowledge/interpretation of foreign law, rules on mandatory rules, rules on public policy (which set which foreign rules cannot be applied), rules on statelessness/dual nationality, …]. While civil law countries are used to codify private law norms, common law systems (especially the US) use the atypical form of restatements (work of scholars) to come up with reliable sources of private law. In 1971 the US released a restatement of the law dealing with conflict of laws. Civil law systems tend to adopt a rule-oriented approach [legislator not interested in the eventually applicable law - including pre-determined escape clauses (ex. public policy) and informal escape clauses (judge taking decisions in order to change the applicable law, ex. from contract to tort law)]. On the other hand, common law systems adopt a substance-driven approach. This approach was put forward by US scholars in between 1930s and 1950s. Before it, different other approaches were available (ex. most-significant-relationship approach, governmental interest approach, lex fori approach, better law approach). States can be unitary or federal. This has consequences on the sources of law. (c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States; (g) the development of alternative methods of dispute settlement; (h) support for the training of the judiciary and judicial staff. 3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament. The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament. The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision. Regulations have both direct vertical and horizontal effect, while directives only vertical; that is relevant since the conflict of laws matters are usually between private citizens. The most important regulations are:  the Brussels regulations (Brussel 1 bis and 2 bis) = they deal with jurisdiction, recognition and enforcement of judgements;  the Rome regulations (Rome 1 and 2) = they deal with applicable law. There was a proposal for a common European code, but it is not yet in existence. Moreover, harmonisation can be achieved also by means of enhanced cooperation: a minimum of 9 states can do that by creating a regulation only binding to them, such as the Rome 3 regulation, which deepens their cooperation, but leaves out the other non-agreeing states. Furthermore, treaties may be concluded by the EU with other third countries in order to extend EU rules outside of the Union, see the Lugano Convention [states belonging to the EFTA (European Free Trade Association) can benefit from this convention - it is the same as the Brussels 1 regulation, just in the form of an international treaty instead of a regulation]. Protocols 21 and 22 allow for some states not to be bound by EU regulations sometimes, following the opt out model (ex. Denmark) or opt in model (ex. Ireland and UK). The opt out model allows for more rigidity, while the opt in model is for flexibility. Some Hague conventions have been ratified just by states, and not by international organisations. Others have been ratified, for ex., also by the EU (ex. Convention on Choice of Court Agreement). Indeed, a further reason for the EU to sign and ratify treaties is creating obligations between EU MSs and non-MSs, on the basis of art. 216, TFEU. However, the treaty does not need to have equal effects on each party/MS. For instance, in a Council decision of 2011 approving the Hague Convention n. 38, the EU declared that it would extend the application of chapters II and III of the Convention to spousal support; but this is up to each MS to decide. Furthermore, states may make declarations (ex. reservations) upon the scope of application of a convention. Reservations may even be requested by the EU on behalf of a list of specific MSs. The treaty may also have no effects at all on a certain MS (ex. through the opt-out system by Denmark). In EU law some international law sources have been passed into EU regulations (ex. Council regulation no. 1347/2000 incorporating the Convention on Jurisdiction and Enforcement of Judgments in Matrimonial Matters). In this internationalised framework domestic law plays different roles: 1. the lawmaker can create law in the areas not covered by existing conventions nor EU law, according to art. 2(2), TFEU (legislative power of MSs on shared competences, to the extent that the Union has decided to cease exercising its competence) - ex. art.s 5-13, It code of navigation (also addressing applicable law on acts committed aboard a ship); 2. the lawmaker can expand the scope of existing conventions (and perhaps EU law), provided this is not interpretable as a violation of such international instruments: a. the reference may be to single provisions (ex. art. 3, It law no. 218/1995 deals with the applicability of Italian jurisdiction, according to residence or domicile and the principles laid down in some provisions of the Brussels regulation); b. the reference may be to whole treaties: i. expansion beyond the conventional objective and subjective limits (ex. art. 45, It law no. 218/1995 establishes that the maintenance obligations in a family are in any case regulated by the 1973 Aja Convention dealing with the topic, even if the Convention itself leaves out some aspects from its scope of application); ii. temporal aspect of the reference: fixed (renvoi fixe) or mobile (renvoi mobile), if the instrument is substituted by a subsequent one which replaces it - the answer may be provided for by the same later instrument (ex. the Brussels regulation establishes the renvoi mobile principle with regard to the convention it is replacing). In this Europeanised framework international law has the role, through treaties concluded by the MSs, to further advance European integration and attain European objectives. Regulation no. 1206/2001 deals with cooperation between the courts of the MSs in the taking of evidence in civil or commercial matters; its art. 21(2) establishes that the regulation shall not preclude MSs from maintaining or concluding agreements or arrangements between two or more of them to further facilitate the taking of evidence, provided that they are compatible with the regulation. There are three possibilities available to deal with conflicts among different rules: 1. coordination among rules, so as to avoid conflict (ex. art. VII(2), UN NY Convention establishes that the Geneva Protocol on Arbitration Clauses and the Geneva Convention on the Execution of Foreign Arbitral Awards, which are prior, shall cease to have effect) - there are two possible types of conflict clauses: a. saving clauses = when in conflict with another treaty, this will take priority (art. VII(1), NY Convention establishes that the provisions of the convention shall not affect the validity of multilateral or bilateral agreements concerning the same topic of the convention entered into by the contracting states); b. priority clauses = when in conflict with external law, a treaty takes priority (ex. art. 103, UN Charter, establishing that the Charter shall prevail over other state obligations when in conflict); 2. interpretation of rules, so as to dispel conflict = the domestic judiciary is somehow constrained in the interpretation of rules that have an international origin (ex. art. 7, Vienna Convention on Contracts for the International Sale of Goods establishes that in the interpretation of the convention, regard is to be had to its international character) - uniform application of norms incorporating treaty law is ensured by: a. the resort to the interpretive rules valid under public international law; b. consideration of the idea of autonomous concepts; 3. prioritization of rules, so as to solve conflict, through hierarchy = it is up to domestic law to tell how a possible conflict with international law could be solved - when it comes to EU law, in all MSs it takes precedence over domestic law (with exception of the highest values of the legal system). The Lugano Convention extends the application of the Brussels regime also to Norway, Switzerland, Iceland and Lichtenstein. The CJEU has no jurisdiction to interpret the Lugano Convention. Autonomous interpretation = regard must be had to the rules of the source itself and, more specifically, to the way it defines its own terms. Art. 2(1), It law no. 218/1995 establishes that the law does not prevent the application of international conventions in force for Italy. Some scholars are afraid this provision may be interpreted and used to avoid bringing conflicts between domestic and international law before the constitutional court, i.e. empowering the judge to disapply domestic law in favour of international law without hearing the constitutional court. When we speak of EU law (and its primacy), we refer not just to its PIL, but also to substantive rules. Both of them trump domestic law of MSs. Rüffer v. Pokorna case On 22 February 2009 Ms. Grauel Rüffer, a German national, fell on a ski run situated in the Province of Bolzano and injured her right shoulder. She claimed that that fall was caused by Ms. Pokorná, a Czech national. Ms. Grauel Rüffer claimed compensation from Ms. Pokorná for the damage sustained. In the proceedings brought before the referring (Italian) court, the notice of proceedings was drafted in German at the request of Ms. Rüffer. Ms Pokorná submitted her defence in German and raised no objection as to the choice of German as the language of the case. At the first hearing, the referring court, having regard to judgement no. 20715 delivered by the Italian Supreme Court, raised the question of choice of the language, that is German or Italian, in which the proceedings should be continued. In that judgement, the Italian Supreme Court held that the provisions of the DPR no. 574/1988, which provides for the possibility to have proceedings in German, applied only to Italian citizens residing in the Province of Bolzano. The ECJ stated that according to the principle of non-discrimination the same right of choice of language should be granted to everyone. Boukhalfa v. Germany case Ms. Boukhalfa was a Belgian national. Since 1 April 1982, she had been employed on the local staff of the German Embassy in Algiers. Her contract of employment was concluded in Algiers. Prior to entering into that contract, Ms. Boukhalfa was already established in Algeria. In accordance with the German law on the diplomatic service, the contract was subject to Algerian law. In 1991 Ms. Boukhalfa asked to receive the same treatment as local staff of German nationality. Indeed, according to the same German law on the diplomatic service, the legal status of local staff having German nationality was determined by German collective agreements and other provisions of German law. The Federal Republic of Germany did not accede to that request. The ECJ decided that Ms. Boukhalfa had to be put on an equal footing with the German police. The choice of the applicable law was wrong because European citizens working in the same place had to be treated equally (principle of non-discrimination). Treaties may be concluded by EU MSs or by the Union itself. If the EU has already exercised its competence on PIL, then the MSs may not override it. Before entering the Union, a state may have already ratified an instrument which is incompatible with EU law; then it should renegotiate it. definition, in order not to discriminate among states - with regard to rules of choice of jurisdiction, they are bilateral by definition at international level, while they are unilateral by definition at state level; this is so because a country may only decide the cases where it has jurisdiction, but it cannot establish neutral connecting factors leading to the jurisdiction of another forum (sovereignty principle);  spatial localisation approach = the same as the bilateral approach;  material considerations approach = the applicable law is selected by considering the material outcome the legislator wants to arrive at, as it was designed during the American revolution on choice of law (ex. application of domestic law as a rule or exception or limited operation of connecting factors - art. 23, law no. 218/1995, according to which the capacity to act of people is governed by their national law, with exceptions). Typology of connections:  choice of law) connecting/linking factors;  choice of jurisdiction) jurisdictional criteria. Different taxonomies are in place:  factual factors = given as a matter of fact (ex. the place where a car accident occurred) - usually fixed;  legal factors = linked to legal concepts (ex. the place of habitual residence) - usually mobile; [the two may overlap (ex. the place where a contract is signed could be a factual factor, but different legal systems may have different ideas of what a contract is or how the place where it is signed could be established)]  special factors = the will of the parties, lex voluntaris - its validity has to be assessed against the lex causae according to art. 10, Rome regulation - if the parties make a choice of jurisdiction, then the courts of such jurisdiction would apply the conflict of laws rules of that specific jurisdiction, even if reasonable certainty needs to be there during choice of law according to art. 3, Rome regulation - different legal systems may provide the parties with different laws to be chosen (the US system is more strict in this regard than the EU one) - quite often the will of the parties takes the form of a precise law of a specific jurisdiction (unilateral approach), but it could also take the form of a floating clause, which identifies the applicable law by means of more abstract terms (bilateral approach - ex. law of the state of incorporation of the defendant);  personal factors = nationality/citizenship, lex patriae - it should be assessed against the law of the same state whose nationality is under discussion;  geographic factors = subjective (residence/domicile) or objective (seat of the judge, place of contracting, …) - the difference between residence and domicile may differ in different legal orders - sometimes subjective and objective geographic factors may overlap (ex. habitual residence);  mixed factors = involving multiple factors (ex. place of prevalent localisation of family life) - their use is of help, as they provide flexibility for judges. Private law categories are many, and a different connecting factor can be attached to each of them. The same legal issue can show multiple connecting factors (ex. succession could witness different multiple factors, relating to material norms, capacity or form of the last will). This issue is usually solved by the idea of dépecage, which is mostly used in contract law; this means to chop up a contract, so that every part is governed by a different connecting factor. In the EU system the freedom to use this practice is more reduced than what happens, for ex., in the US. Sometimes there are many connecting factors attached to a category and, so, a mutual relation may be established, of different kinds:  alternative = only one of the factors has to be fulfilled (ex. art. 28, It law no. 218/1995 on marriage validity provides for favor validitatis, which means favouring the validity of an act, maximizing the possibility for the marriage to be valid, by providing multiple connecting factors, connected by the word or);  successive = factors are sorted out hierarchically (ex. art. 31, It law no. 218/1995 on separation provides for a hierarchy in which law should regulate this topic - if one is lacking, the other one is applied - the lawmaker expresses a preference);  cumulative = all factors have to be fulfilled (ex. art. 25(3), It law no. 218/1995 states that the transfer of the seat of a company is valid only if it complies with the laws of all the interested states). Also jurisdictional criteria may be bound by different kinds of relations:  general = criterion of general application (ex. art. 3, It law no. 218/1995 states that Italian jurisdiction applies when the actor is domiciled or resident in Italy);  alternative = criterion applicable along with the general one (ex. art. 32, law no. 218/1995 states that in matters of nullity or annulment of marriage there is Italian jurisdiction, beyond for what is provided for by art. 3, also when one of the spouses is an Italian citizen or the marriage was celebrated in Italy);  exclusive = only one criterion to be applied (ex. art. 24, EU Brussels I bis regulation enlists the MSs which shall have exclusive jurisdiction regardless of the domicile of the parties);  general + alternative = multiple criteria, possibly directing the judge towards different places (ex. art. 63, Brussels I bis regulation provides for different criteria to assess the domicile of a legal person). Procedural issues may become relevant when deciding a PIL case (ex. when the trial by jury should be granted). Some matters are considered procedural in some countries and substantive in other countries (ex. statutes of limitations). Procedural issues are to be decided according to the lex fori. Indeed, the applicable law of the substantive issues of the case is not the same for procedural matters (ex. art. 12, law no. 218/1995 states that civil proceedings in Italy are regulated by Italian law). Incidental question = preliminary question that must be answered before addressing the main one, thus splitting the case in more cases, one of which should be decided before moving to the next one (ex. validity of a prior divorce in order to decide on the validity of a successive marriage). Ponnoucannamalle v. Nadimoutoupoulle case An Englishman died in France, where he was domiciled, his estate being made up of real estate located in Indochina, which was at the time under French control. French PIL indicated the application of French law for succession issues. Among the heirs was a legitimate son of a person that had been adopted by the deceased in India. This adoption was questionable because it occurred when the adopter already had natural children. The inheritance rights of the grandson depended on the validity of the father's adoption by the deceased (incidental question). According to French law the adoption was not valid, while according to Indian law it was. The two questions which may arise are whether the judge is entitled to answer incidental questions and which law should be applied to the incidental question. With regard to the first question, according to art. 6, law no. 218/1995, even if the incidental question is not included within the jurisdictional scope, the judge is still entitled to respond to it if it is necessary to decide the main question. With regard to the second question, international conventions are generally silent on the issue, with just few exceptions (ex. according to art. 4, Hague Convention on the law applicable to trusts and on their recognition, the Convention does not apply to preliminary issues relating to the validity of wills or of other acts by virtue of which assets are transferred to the trustee). The issue is mainly left to domestic laws. Different possibilities can be figured out:  joint solutions = incidental question subject to the lex causae of the main question;  disjoint solutions = incidental question subject to the lex fori;  renvoi = including or excluding PIL rules, leading to four possible solutions: lex fori lex causae lex materialis substantive law of the legal system of the judge deciding the case substantive law of the legal system chosen by means of the connecting factor of the main question in the lex fori lex formalis substantive law of the legal system chosen by the connecting factor of the incidental question in the lex fori substantive law of the legal system chosen by the connecting factor of the incidental question in the lex causae Each country decides which solution to give to this issue (ex. in Italy if the main question is governed by the lex fori, then domestic conflicts rules apply to the preliminary question - the preliminary question does not arise if the answer to it has been given through a judicial decision valid in the lex fori). Knowledge of foreign law may lead to two questions: 1. is the judge allowed to apply foreign law motu proprio? 2. is the judge presumed to know foreign law? The answers to these questions depend from state to state. For ex., with regard to the first question:  in UK the answer would be no, the judge will apply foreign law only if requested by the parties (even third ones) or a convention;  in Italy the answer would be yes, the judge will apply foreign law automatically, as provided for by art. 14, It law no. 218/1995, even if the parties are against this possibility (cogent nature of PIL rules). With regard to the second question, two issues may arise: a. how is the judge supposed to get to know foreign law? b. how is foreign law to be interpreted by the judge? Even here the answers depend on each system; for ex. with regard to the first issue:  in UK the answer would be that the parties are required to provide proof of the content of foreign law (which is treated as a matter of fact) - evidence will have to be given by experts, one for each side, and evaluated by the judge;  in Italy the judge must establish both the applicability and content of foreign law (which is treated as a matter of law) - the parties may, but in no way are obliged to, provide proof of foreign law - according to art. 14, It law no. 218/1995, the judge may use different instruments, including international conventions such as the 1968 European Convention on information on foreign law, which requires states to establish an institution which would answer questions by judges who find themselves in such a situation as the one described above - whenever the judge cannot ascertain the foreign law indicated, they will apply the law which is found by the connecting factors provided for by the norms; if they are lacking, Italian law will be applied. With regard to the second issue, the legal systems (ex. Italy) that consider the application of foreign law as a quaestio iuris tend to think that foreign law must be applied according to what it truly means (law in action), not what it appears to say (law in the books); this view can be shared by those legal systems (ex. UK) that consider the application of foreign law as a quaestio facti, although the approach taken by the former category of states might perhaps entail more far-reaching consequences. The application of foreign law as a matter of law could have different consequences, such as the integral application of the legal system of the lex causae, the interpretation of foreign law based on its own hermeneutical criteria, the consideration for the judicial application of foreign law, the assessment against the constitution of the foreign legal system or richaracterisation. While with characterisation an issue is classified within a private law category with a view to identifying the proper connecting factor, with Generally speaking, reciprocity describes the relationship between two states when one state offers the subjects of the other state certain privileges on the condition that its subjects enjoy similar privileges in the other state. Reciprocity is important: 1. when the treatment of aliens is at stake (law to be applied and legal protection to be granted to aliens); 2. when the recognition and execution of foreign judicial decisions is under discussion. Concerning the treatment of aliens, we can find very early reciprocal treaties, as those concerning extradition of felons and others dealing with protection and commercial advantages for merchants. For ex., a statute of Como was in place in 1219 to direct the tribunals in Como to apply to aliens the same law as to citizens (lex fori). Concerning the recognition and enforcement of foreign judgements, the principle of reciprocity emerged later. The Peace of Westphalia (1648) established an international system based on the equal sovereignty of states. Reciprocity has been traditionally connected to the notion of sovereignty. Since acts of one sovereign state cannot operate ex proprio vigore within the territory of another sovereign state, it was regarded as a matter of comitas to grant those acts (or decisions), recognition. A state proceeds ex comitate if and when its courteous attitude is reciprocated. According to art. 16 of the Italian General provisions on the law contained in the royal decree n. 262 of 16 March 1942, the alien is entitled to the civil rights attributed to citizens on a condition of reciprocity, save for the provisions contained in special laws. This provision also applies to foreign legal persons. This article imposes upon the judge to verify case-by-case if the rights or prerogatives that the foreigner wants to have recognized and enjoy in Italy are equally granted and recognized by the state of the foreigner to Italian citizens. Scholars interpret art. 16 as:  a form of state retorsion against the foreigner's state;  a stimulus, a tool that could stimulate the states to recognize increasing rights to foreigners so that the test of reciprocity will always be met;  at the end of the day… you get what you give. Pursuant to the legislative decree n. 286 of 25 July 1998, some subjects are officially recognised to be on an equal standing as Italian citizens and are therefore exempted from the obligation to verify the condition of reciprocity:  the citizens of the EU MSs and of the EEA member countries;  the citizens of non-EU states staying on the Italian territory in possession of an immigration visa and a regular permit to stay issued under an employment contract or to exercise as a self-employed worker, sole trader or for family, humanitarian or educational reasons;  stateless persons residing in Italy for at least three years;  refugees residing in Italy for at least three years;  citizens of those countries with which Italy has in place a Bilateral Investment Treaty (BIT). In any case the aliens are entitled to the fundamental human rights set forth in national laws, international conventions currently in force for the state and in general international law. Pursuant to art. 10 of the constitution, the Italian legal system conforms to the generally recognised principles of international law. Art. 117(1) of the constitution provides that legislative power shall be vested in the state and the regions in compliance with the constitution, as well as the constraints deriving from EU legislation and international obligations. Therefore, the condition of reciprocity shall be applied in conformity with the obligations entered into by the Italian Republic under the bilateral or multilateral agreements, in respect of which the existence of the condition of reciprocity has to be verified pursuant to art. 16 of the General provisions on the law. A BIT is an international treaty providing some standards of protection in favour of foreign investors. States undertake reciprocally some obligations regarding the treatment of foreign investments in their territories. BITs are executed by states, but provide for an incentive for natural and legal persons; they also create a right for the investors to bring a claim directly against the state if it does not perform its obligations. Foreign Direct Investments (FDIs) refer to any asset invested by a foreign investor in the territory of another state, in compliance with the laws and regulations of the latter. Some of the most common forms of FDIs include:  property rights in movable and immovable property and other rights in rem;  monetary claims or other benefits payable under contracts;  the acquisition of existing companies or of shares thereof;  the establishment of new companies;  royalties and industrial property rights;  legal concessions such as the licence to explore, extract and exploit natural resources. The standards and norms protecting FDIs are:  relative standards (conduct of the state compared with other conducts): o Most Favoured Nation (MFN) standard = an investor may ask to be applied the most favourable treatment the country applies, even if it is for a state different than the one of nationality of the investor; o national treatment;  absolute standards (they do not need to be compared to other conducts to determine the state's international responsibility): o Fair and Equitable Treatment (FET) standard (ex. art. 2(4), Italy-Iran BIT of 1999: Both contracting parties shall at all times ensure just and fair treatment to the investments of investors of the other contracting party. Both contracting parties shall ensure that the management, maintenance, use, transformation, enjoyment or assignment of the investments effected in their territory by investors of the other contracting party, shall in no way be subject to unjustified or discriminatory measures); o full protection and security;  no expropriation without compensation = the host state can expropriate foreign investors for public needs, but only if compensation is provided for. The obligation to verify the existence of the condition of reciprocity does not apply to the citizens of those countries with which Italy has signed and ratified a BIT. In these cases, the BIT ratification and enforcement provision acquires the nature of a lex specialis compared to the general provision of art. 16, General provisions on the law, thus holding the condition of reciprocity to exist relatively to the matters regulated. For the specific issue of assuming corporate offices, in case this is not considered in the BIT, the condition of reciprocity should be ascertained on a case-by-case basis. In theory the FET, the MFN and the national treatment standards, included in most of the Italian investment agreements, protect foreign investors against unreasonable or discriminatory measures which could affect the management of their investments and therefore their application should prevail over the application of the condition of reciprocity in relation to the governance of the investment. Example An Italian (limited liability) company appoints as sole director a Russian citizen. Both the company and the Russian candidate director have an interest that the appointment is accepted and registered with the company register. The company register refuses to register the appointment arguing that the reciprocity is not met. The company files a claim before the company register tribunal. A BIT is in place between Russia and Italy since 1997. The tribunal rejects the company's claim arguing that the BIT only covers hypothesis of foreign directors that are also shareholders of the company. If a party seeks recognition or enforcement of a judgement rendered in state X in the court of state Y, which does not recognise or enforce the judgement pursuant to its domestic laws or practices, the court of state X could refuse to recognise or enforce a judgement rendered in state Y based on the principle of reciprocity. Rendition of judgement = judicial act by which the court declares the decision of the law upon the matters at issue (award). Recognition of a judgement = acknowledgement of the existence, validity or legality of an award. Enforcement of a judgement = act of compelling observance of an award. Example Rendition = the Italian tribunal rends a judgement and issues a final award on a legal matter between a Turkish subject and an Italian subject. Recognition and enforcement = the Italian subject seeks recognition and enforcement in Turkey. The Turkish judge is called to recognise and enforce the (Italian) award vis à vis the Turkish subject. Many countries are bound by bilateral treaties and international conventions to recognise and enforce foreign awards, but the topic is especially precarious in the absence of any international law instruments governing the matter. Determining whether a foreign judgement is to be given effect or not can be particularly difficult and cumbersome if national law requires the state to grant reciprocity. The court (or the pertinent authority) may have to study foreign procedural laws and find out whether its own decisions would be recognised and enforced in return in the state of rendition. In practice, it is neither clear nor easy for a state to judge whether reciprocity exists between relevant states. Both art. 64, It law no. 218/1995 and art. 797, It code of civil procedure provide for an ad hoc procedure for the recognition of foreign awards, but they do not mention reciprocity, thus foreign awards are recognised and enforced irrespective of the circumstance that the state who rendered the award does the same for Italian awards. Within the EU, according to regulation no. 1215/2012 on jurisdiction and recognition and enforcement of judgements in civil and commercial matters, a judgement rendered by a MS shall be recognised by another MS without any special procedure and it shall be enforceable without any special declaration being required. International treaties in place for the judicial cooperation supersede the domestic laws on the matter. The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards contain 4 provisions that refer to the principle of reciprocity. Art. 1(1) states that this Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a state other than the state where the recognition and enforcement of such awards are sought. However, according to art. 1(3), when signing, ratifying or acceding to this Convention, or notifying extension under art. X hereof, any state may, on the basis of reciprocity, declare that it will apply the Convention to the recognition and enforcement of awards made in the territory of another contracting state. For ex., such reservation has been put forward by USA and Ecuador. CONFLICT OF LAWS RULES Conflict of laws rules or choice of law rules is a set of rules used to determine which domestic law applies in a case where two or more domestic laws seem to be relevant and could apply. The multilateral methodology focuses on the geographical proximity between the dispute (or the legal relationship) and the applicable law and relies on connecting factors. Where a choice of law is made and all other elements relevant to the situation are located in a country other than the country whose law has been chosen, the choice of law should not prejudice the application of mandatory provisions of the law of that country which cannot be derogated from by agreement. The courts should retain a degree of discretion to determine the law that is most closely connected to the situation. As regards contracts concluded with parties regarded as being weaker, those parties should be protected by conflict of laws rules that are more favourable to their interests than the general rules. Art. 3(4) = where all other elements relevant to the situation at the time of the choice are located in one or more MSs, the parties' choice of applicable law other than that of a MS shall not prejudice the application of provisions of Community law, where appropriate as implemented in the MS of the forum, which cannot be derogated from by agreement. Art. 4(1) = to the extent that the law applicable to the contract has not been chosen, the law governing the contract shall be determined as follows: a. a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence; b. a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence; c. a contract relating to a right in rem in immovable property or to a tenancy of immovable property shall be governed by the law of the country where the property is situated; d. […] e. a franchise contract shall be governed by the law of the country where the franchisee has his habitual residence; f. a distribution contract shall be governed by the law of the country where the distributor has his habitual residence; g. […] Art. 4(2) = where the contract is not covered by paragraph 1 or where the elements of the contract would be covered by more than one of the points of paragraph 1, the contract shall be governed by the law of the country where the party required to effect characteristic performance of the contract has his habitual residence. Art. 4(3) = where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. Art. 6(1) = a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence. Art. 6(2) = notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with art. 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1. Art. 8(1) = an individual employment contract shall be governed by the law chosen by the parties in accordance with art. 3. Such a choice of law may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this article. Art. 8(2) = to the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. Art. 8(3) = where the law applicable cannot be determined pursuant to paragraph 2, the contract shall be governed by the law of the country where the place of business through which the employee was engaged is situated. Art. 9 = overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this regulation. Nothing in this regulation shall restrict the application of the overriding mandatory provisions of the law of the forum. LIMITS TO CONFLICT OF LAWS RULES United Antwerp Maritime Agencies (Unamar) NV v. Navigation Maritime Bulgare case In 2005 Unamar, as commercial agent, and NMB, as principal, concluded a commercial agency agreement, which was governed by Bulgarian law. According to such law, any dispute relating to the agreement was to be determined by the arbitration chamber of the Chamber of Commerce and Industry in Sofia (Bulgaria). Taking the view that its commercial agency contract had been unlawfully terminated, Unamar brought an action in 2009 before the Antwerp commercial court for an order that NMB pay various forms of compensation provided for under the law on commercial agency contracts. In the proceedings brought by Unamar, NMB raised a plea of inadmissibility alleging that the Belgian court did not have jurisdiction to hear the dispute before it because there was an arbitration clause in the contract. Thus, the court referred a preliminary ruling question to the ECJ, particularly asking if art.s 3 [freedom of choice] and 7(2) [mandatory provisions] of what at the time was the Rome Convention (now regulation), taken in conjunction with Directive 86/653 (providing that MSs shall take the measures necessary to ensure that the commercial agent is, after termination of the agency contract, indemnified or compensated), should be interpreted as meaning that special mandatory rules of law of the forum that offer wider protection than the minimum laid down by directive 86/653 may be applied to the contract. The Belgian government argued that the provisions of the law on commercial agency contracts were binding and could be described as mandatory rules. The court held that it is up to MSs to classify national provisions as mandatory; it is thus for the national court to determine whether a certain law is mandatory in nature, in so far as it appears that the legislature adopted it in order to protect an interest judged to be essential by the MS concerned. Therefore, the law chosen by the parties could be substituted in favour of the law of the forum, owing to its mandatory nature. While overriding mandatory provisions cannot be derogated from in any case (compliance with them has been deemed to be so crucial for the protection of the political, social or economic order in the MS concerned as to require compliance therewith by all persons present on the national territory of that MS and all legal relationships within that state), mandatory provisions cannot be derogated from by the parties by way of agreement. Art. 3, Rome I regulation is an example of mandatory provision, in particular with regard to its paragraphs 3 and 4. Art. 9 draws a sharp distinction between overriding mandatory law of the forum (para. 2) and overriding mandatory law of the country of performance (para. 3). Para. 2 imposes no restrictions on the application of overriding mandatory law of the forum. Para. 3 establishes that overriding mandatory provisions of the law of the country where the obligations have to be performed may be applied in so far as they render the performance of the contract unlawful. Exceptions to the freedom of choice (art. 3):  mandatory provisions of the law where all other elements relevant to the situations are located [art. 3(3)];  mandatory provisions of EU law as implemented by the MS where all other elements relevant to the situations are located in the EU [art. 3(4)] and the law applicable to the contract is extra-EU;  overriding mandatory provisions of the law of the forum [art. 9(2)] or of the law of the place of performance [art. 9(3)]. Overriding mandatory provisions can be found also in art. 16, Rome II regulation, according to which nothing in the regulation shall restrict the application of the provisions of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the non-contractual obligations. They can also be found in art. 17, It law no. 218/1995. Public policy intervenes in the negative: it can preclude the application of the foreign law, which should be applied in accordance with the conflict of laws rule; or it can preclude the recognition and enforcement of a foreign award. The judge ex officio may raise the issue of public policy and refuse the application of a foreign law or the recognition and enforcement of a foreign award. In the context of the EU, regulation Brussels I bis establishes that only the concerned party can ask the judge to refuse the recognition of a foreign judgement. This is to ease the free circulation of judgements in civil and commercial matters. Public policy can be found in:  art. 21, Rome I regulation = the application of a provision of the law of any country specified by this regulation may be refused only if such application is manifestly incompatible with the public policy of the forum;  art. 26, Rome II regulation = same wording as Rome I;  art. 45, Brussels I bis regulation = on the application of any interested party, the recognition of a judgement shall be refused (a) if such recognition is manifestly contrary to public policy in the MS addressed;  art.s 22 and 23, Brussels II bis (grounds of non-recognition for judgements relating to divorce, legal separation or marriage annulment and parental responsibility);  art. 5, NY Convention = notion not defined - its concrete manifestations may vary from one jurisdiction to another - many countries draw a distinction between domestic public policy and international public policy, for the purpose to narrow down the scope of the public policy which must be considered for assessing whether the enforcement of a foreign award is compatible or not - in other jurisdictions courts do not distinguish between domestic public policy and international public policy, though this does not always mean that courts adopt a broader interpretation of public policy than in the jurisdictions where the distinction exists. According to a study carried out by the International Bar Association, domestic courts seem to have difficulty in precisely defining the meaning and the scope of the notion. In the vast majority of cases, a violation of public policy implies a violation of fundamental or basic principles. These principles seem, however, to be differently expressed by courts (and scholars) depending on whether they are in civil law or common law jurisdictions. In the first group the definitions of public policy generally refer to the basic principles or values upon which the foundation of society rests, without precisely naming them; in the second group, on the other hand, the definition often refers to more precisely identified, yet very broad, values, such as justice fairness or morality. Kuwait Airways Corporation v. Iraqi Airways Company and Others case In 1991 the Gulf war ended with the defeat of Iraq. The UN Security Council required Iraq immediately to rescind its actions purporting to annex Kuwait and it required it to accept liability under international law, calling upon Iraq to return all property seized by it. a. by an agreement entered into after the event giving rise to the damage occurred; or b. where all the parties are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occurred. Art.s 16 and 26 deal with overriding mandatory rules and public policy of the forum, respectively. These articles apply, in particular, where the designated law under the regulation were to allow for non- compensatory/punitive damages of an excessive nature. It Supreme Court case no. 1183 Appeal against the decision of the court of appeal to reject the recognition of an award of punitive damages by a US court against an Italian company on the basis of public policy. The US applicant claimed that the award was not against Italian public policy, as even the Italian legal system would include some provisions which, by their nature, would allow for some kind of punitive damages. The Italian Supreme Court claimed these provisions to be different from the purpose pursued by the US norms on punitive damages, as their aim is reparative rather than punitive. Thus, the appeal was rejected. US CONFLICT OF LAWS RULES The American revolution on choice of law has resulted in a shift from the traditional system based on the use of geographical criteria (Von Savigny) to a system based on the search for the goal pursued by the lawmaker (Currie). According to Currie’s theory, the choice of law is essentially a process of interpretation of substantive laws, to find their purpose and the policy they want to advance. Currie argued that in many interstate cases there is no real conflict of laws, because only one state has an actual interest in the application of its law (false conflict). The state that has the interest is usually the state which has the most significant relationship to the transaction and the parties. According to this theory, if two state laws are in conflict, what should be done is looking at the purposes of the two laws and finding which state actually has an interest in seeing its law being applied. The US is a federal state and the law is not unified and varies from state to state. This diversity is mitigated by the work of some institutions, such as the National Conference of Commissioners on Uniform State Laws, which drafts model laws that states are free to adopt, and the American Law Institute that aims to restate given branches of the law. The ALI Restatements may influence courts, which may decide to follow them. Currie’s idea that courts ought to take into account governmental interests in choice of law analysis was tremendously influential in the US. The first US state following Currie’s doctrine was New York. In 1950 the NY court of appeal decided the case Auten v. Auten, replacing the Restatement First’s lex loci contractus rule, with the centre of gravity approach; in 1963 the NY court of appeals decided the Babcock v. Jackson case, abandoning the Restatement First’s lex loci delicti rule. Then, most US states have rejected the traditional system to apply new methodologies that, in a way or another, assess the state’s policy to determine the applicable law. The Restatement Second was based on Currie's idea and was followed by half US states adopting this approach. However, very few states resolve the choice of law issue solely by reference to the state’s interest. Carrie’s approach mandates courts to assess whether the policies of the sates involved in the case would be furthered if their laws were to be applied. There could be three options: 1. false conflict = where only one state is interested in the application of its law, courts will obviously apply the law of the only interested state; 2. true conflict = where several states will be interested in applying their law, Currie advocated applying systematically the law of the forum, especially in cases where the forum was one of the interested state; 3. unprovided for-cases = cases in which none of the involved states has an interest in applying its law. Nowadays in almost half of the state courts follow the Restatement Second; ten other states follow very similar methodologies; ten states still follow the traditional method; a couple a pure interest analysis method. Since 2015, the ALI is at work on the Restatement Third, which will take account of developments over the last five decades. Para. 6 of the Restatement Second titled choice of law principles is the cornerstone of the Restatement. It articulates the principles that shall guide the choice of law, but falls short of providing an actual choice of law rule; its principles are only factors relevant to the choice of law process. BRUSSELS I BIS REGULATION Case C-322/14 The applicant in the main proceedings, a car dealer established in Cologne (Germany), purchased from the website of the defendant in the main proceedings, whose registered office is in Amberg (Germany), an electric car. However, the sale was cancelled by the seller on account of damage allegedly sustained by that vehicle during preparations for transport. Taking the view that the reason given was only a pretext for the cancellation of that sale, which was disadvantageous to the seller on account of the low sale price, the applicant in the main proceedings brought an action before the Landgericht Krefeld seeking an order that the defendant transferred ownership of that vehicle. The applicant in the main proceedings claims that his contracting partner is the defendant in the main proceedings, established in Germany, and not its parent company, established in Belgium, and, therefore, that the referring court has jurisdiction to deal with the case concerned. By contrast, the defendant in the main proceedings contends that the German courts do not have jurisdiction in the case, as art. 7, general terms and conditions for internet sales transactions, accessible on its website, contains an agreement conferring jurisdiction on a court in Leuven (Belgium). The referring court wishes to know whether click-wrapping, by which a purchaser agrees to the general terms and conditions of sale on a website by clicking on a hyperlink which opens a window, meets the requirements of art. 23(2), Brussels I Regulation [now art. 25(2)]. Art. 25 [prorogation of jurisdiction] = (1) If the parties, regardless of their domicile, have agreed that a court or the courts of a MS are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. The agreement conferring jurisdiction shall be: (a) in writing or evidenced in writing. (2) Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. The referring court takes the view that click-wrapping, the subject of the dispute before it, allowed the general terms and conditions containing the agreement conferring jurisdiction both to be printed and saved. The ECJ held that in the present case the purchaser expressly accepted the general terms and conditions at issue, by clicking the relevant box on the seller’s website; and that the validity of an agreement conferring jurisdiction, such as that at issue in the main proceedings, may depend, inter alia, on the possibility of providing a durable record. Finally, the Court held that the method of accepting the general terms and conditions of a contract for sale by click-wrapping, such as that at issue in the main proceedings, concluded by electronic means, which contains an agreement conferring jurisdiction, constitutes a communication by electronic means which provides a durable record of the agreement, within the meaning of art. 25(2), Brussels I bis regulation, where that method makes it possible to print and save the text of those terms and conditions before the conclusion of the contract. The Brussels I bis regulation repealed and replaced the Brussels I regulation (44/2001). Precursor to this regulation is the 1968 Brussels convention. The Lugano convention extends this regime to the EFTA states (Iceland, Norway and Switzerland) and Denmark. Indeed, Brussels I regulation applied to all EU MSs excluding Denmark, which opted out from implementing regulations under the area of freedom, security and justice. The overriding principle of Brussels I is that of mutual trust, as highlighted by the ECJ in the Gasser case in 2003. Mutual trust enables a compulsory system of jurisdiction to be established, in favour of a simplified mechanism for the recognition and enforcement of judgements. Ratione materiae = the regulation covers civil and commercial element. The decisive element is the analysis of the subject matter, rather than the kind of court adjudicating it. Arbitration is excluded from the scope of application of the regulation. Ratione personae = the regulation is applicable to three cases: 1. the defendant in the legal proceedings is domiciled in a MS [art. 4(1)] - their nationality and the nationality and domicile of the plaintiff are irrelevant; 2. a court in a MS has exclusive jurisdiction, whatever the domicile of the parties (art. 24 - ex. in proceedings which have as their object rights in rem in immovable property); 3. a valid choice of forum clause has been made (art. 25). Some legal systems (ex. Italy) may decide to make the choice of jurisdiction under art. 25 valid under domestic law, as long as other elements are provided for, as additional protection is required (ex. through double signature for the validity of the choice of forum clause). Persons domiciled in a MS may be sued in the courts of another MS:  in matters relating to a contract, in the courts of the place of performance: o in the case of sale of goods, the place where the goods were delivered (element of complication, not always clear where this place is); Where there is no choice, the regulation introduces harmonised conflict of laws rules on the basis of some connecting factors. The purposes of these rules are:  guaranteeing legal certainty and predictability;  preventing a situation from arising in which one of the spouses applies for divorce before the other one does, in order to ensure that the proceeding is governed by a given law which they consider more favourable to their own interests. The freedom of choice of the spouses is limited to the laws with which they have a close connection, thus the choice may point to:  the law of the state where the spouses are habitually resident at the time the agreement is concluded; or  the law of the state where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or  the law of the state of nationality of either spouse at the time the agreement is concluded; or  the law of the forum. The agreement of the spouses on the applicable law should, at least, be expressed in writing, dated and signed by both parties (art. 6). In the absence of a choice by the parties, divorce and legal separation shall be subject to the law of the state:  where the spouses are habitually resident at the time the court is seized; or, failing that  where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that state at the time the court is seized; or, failing that  of which both spouses are nationals at the time the court is seized; or, failing that  where the court is seized. The law designated by the regulation applies whether or not it is the law of a participating MS (universal character). In many judgements under Rome III, the applicable law is the law of a third state, designated either by the choice of the parties, or by objective criteria (art. 8). Thus, for ex., it often occurs that Moroccan law has been applied in judgments under Rome III, involving Moroccan nationals (in Italy). These scenarios are possible because of the universal character of Rome III. According to art. 4 and recital 12, the law designated pursuant to the regulation shall apply whether or not it is the law of a participating MS. Regulation Rome III is based on the respect of fundamental rights and the principles of the Charter of Fundamental Rights of the EU, in particular art. 21 (non-discrimination). The regulation should be applied by courts in observance of those rights and principles. However, the applicable law, especially where it is the law of a third state, may violate the principle of non-discrimination between a man and a woman. For this purpose, art. 10 of the regulation provides for the applicability of the lex fori where the foreign applicable law does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex or where the law applicable pursuant to art.s 5 and 8 makes no provision for divorce. In addition, the application of a provision of the law designated by virtue of the regulation may be refused if such application is manifestly incompatible with the public policy of the forum (art. 12). Art. 13 stipulates that the regulation Rome III does not oblige the courts of a participating MS, whose law does not provide for divorce or does not deem the marriage in question valid, to pronounce a divorce. This means, for ex., that a MS not recognizing same-sex marriages will not be obliged to divorce them either. Case C-249/19 JE and KF, who are Romanian nationals, married in Romania in 2001. In 2016 JE applied for divorce to a Romanian court of first instance, which established that Romanian courts had general jurisdiction to hear the application for divorce (art. 3(1)(b), Rome III regulation) and that Italian law was the law applicable to the dispute of which it was seized, on the ground that the habitual residence of the spouses was in Italy (art. 8(a), Rome III regulation). Under Italian law an application for divorce made in circumstances such as those in this case could filed only if legal separation had previously been established by a court. Such rule is not provided for by Romanian law. Thus, the court concluded that these proceedings had to be conducted before the Italian courts. JE lodged an appeal against this judgement, claiming that the application of Italian law would be incompatible with the public policy of the forum. The question referred to the ECJ was whether art. 10, Rome III regulation should have been interpreted in a strict or broad way. The Court held that art. 10 was not applicable to the dispute and that the fact that Italian law makes divorce subject to compliance with conditions considered to be more restrictive than those laid down by the law of the forum was irrelevant in that regard. Opposite decisions have been reached with regard to the same national law, in cases with similar facts. For example, in a ruling by a Spanish court, the Moroccan family code of 2004 has been deemed to be contrary to public policy of the forum; although under the code, divorce proceedings can be initiated by women, they may petition for divorce only on specific grounds, such as serious violations of the obligations and duties of marriage that make a shared life intolerable. On the contrary, an Italian court has held that, in the light of all the circumstances of the case, the Moroccan family code was not contrary to public policy of the forum; the divorce by mutual consent provided for by Moroccan law was deemed to be similar to the Italian divorce on demand made jointly by the two spouses: a joint application leads to the presumption that the spouses agree to divorce and the subsequent conditions regarding their children and financial relations and the proceedings are simplified. GUEST LECTURES Do we still need Private International Law? PIL might be understood both in a strict and in a broad sense:  strict sense (German approach) = PIL answers exclusively answers of applicable law - it is understood to be a set of norms which rules how to determine a law applicable to a given case of private law character with an international element involved;  broad sense (approach prevailing in the majority of EU countries) = PIL is a set of norms applicable to transborder cases to determine questions of jurisdiction, questions of applicable law and questions on the recognition and enforcement of a foreign judgment in another country. PIL in a broad sense is composed of PIL in a strict sense and international civil procedure. PIL rules are rules of second degree, meaning that they give no substantive solution to the case, but they only decide about the application of other substantive rules. Once the jurisdiction is ascertained, the court’s reasoning has always two phases: 1. conflicts of law phase = applying PIL rules, searching for applicable law; 2. substantive problem phase = solving the problem according to applicable law, which sometimes is foreign law. Sometimes there is no need for PIL rules because in international relations attempts have been made to harmonize private law on the ground level, that is, on the level of substantive rules. This is not always possible, as private law is strongly founded on traditions, history and culture. A way out of this issue might be harmonizing conflicts rules, so that, no matter which the court hears the case, the same national law will be applied. Choice of law as a connecting factor in PIL There are various types of connecting factors: 1. traditional objective factors = for many ages the only way to identify applicable law was to make reference to some objective connections - different legislators had different ideas of which connection was to be used and was most useful (ex. nationality, habitual residence, place of making the contract or the damage); 2. subjective connecting factors = when the applicable law is designated by the decision of the parties (choice of applicable law). The expression choice of law has a double meaning. When we refer to choice of law rules, we are referring to all kind of rules helping us finding the applicable law, no matter whether the connecting factor is objective or subjective. Choice of law is a subjective connecting factor, an option that comes into place when the choice of law rule gives parties the possibility to choose the applicable law. Freedom of choice:  pros: o respecting party autonomy, o enhancing legal certainty; o foreseeability of solutions; o lower transaction costs; o the possibility to find the best law for a given relationship; o fighting the unpredictability of objective connecting factors;  cons: o power of the legislator to regulate this issue (limits in the form of public order, mandatory national norms); o risk of escaping the imperative provisions of the law that would be otherwise applicable (choosing a law that is convenient for the situation). The positive experience in letting the parties choose the law applicable in contracts has encouraged a gradual introduction of the subjective connecting factor into new areas beyond contract. Choice of law can be:  limited or unlimited = the parties can choose any law in the world or only those which have a connection with the contract in question: o contractual obligations) art. 3, Rome 1 regulation; o non-contractual obligations) art 14(1), Rome 2 regulation;  express or implied;  a priori or a posteriori. Choice of law must concern a law of a state enacted by a given legislator. So, one cannot choose UNIDROIT principles or lex mercatoria principles as governing law; it must be a body of law pertaining to a specific state in the current time. Even in contracts, where freedom is very broad, there are some limitations to it. In Rome 1 regulation there are some examples, like insurance. Art. 6 and 8 protect weaker parties in consumer contracts and employment. Moreover, also in the field of marriage and legal separation there are choices among which you can decide, but not all laws are available.