The magic evolution of conflict of laws
(Internationalisation, interdependence
and the role of tolerance)
The magic evolution of conflict of laws
Tamas Dezso Ziegler
1
Changes in conflict of laws
•
Switzerland: from famine to success
•
Public choices set the direction of future (Brexit,
progression, nationalism and tolerance, etc.)
•
Dissertation + conference: the role of nationality
•
Jürgen Basedow’s book – The Law of Open
Societies. Brill, 2015.
2
Open societies
3
•
Karl Popper: The Open Society and its
Enemies. 1945.
–
Closed and open societies
–
Closed state: governed by an elite, asks for
conformism, have authoritarian leaders, etc.
–
Open society: tolerant, fights against
intolerance, democratic system
Closed societyies
4
‚…are not based upon tradititional attempt
to improve social conditions…. Taboos rigidly
regulate and domiate all aspects of life… The
right way is always determined, though
difficulties must be overcome in following it.
It is determined by taboos, by magical tribal
institutions which can never be objects of
critical consideration. Based upon the
collective tribal tradition, the institutions
leave no room for personal responsibility.’
(Basedow cites Popper, p. 26.)
Tendencies on the world
5
•
Interdependency: states, persons and businesses are
connected and depending on each other: Did Milan got
closer to Germany? (Ole Lando)
•
Commercial relations got more intensive
•
Continents
get ’unified’: NAFTA, South America:
UNASUR, ASEAN+6, Africa:
Continental Free Trade
Area (CFTA)
•
Nationalism got weaker
•
Migration: more people move (however, the % of
population is not necessary higher than 100 years
before)
•
Swim against the stream: protectionism, isolationism,
racism, retrograde politics
General observations:
extreme fragmentation
6
•
The Hague Conference on
Private International Law
•
EU:
–
explicit rules
–
”hidden” rules
•
State legislation
General observations: role of
citizenship fades away
7
Kegel, 1977:
„The most important connecting principle in
German private international law is the principle of
nationality”
1977, EGBGB (examples)
:
–
Concluding mariages: if one of the parties has
German nationality: german law
–
Obligations:
•
Damages:
joint citizenship
exception v Rome II –
joint habitual residence (also: affiliate of a
German company made damage to a German
citizen abroad:
German law)
•
In certain cases: compensation for a damage
could not be higher
than the provisions set by
German law
, IF defendant was German
•
Contracts:
may chose the country of citizenship
USA:
domicile was used instead!!
Habitual residence gets
important
8
•
EU legislation on choice of law
(e.g.
Rome I):
„
a contract for the sale of
goods shall be governed by the law of
the country where the seller
has his
habitual residenc
e
•
1980 Rome Convention:
most closely
connect
ion:
party’s
habitual
residence
•
Definition of habitual residence also
changed
:
permanent centre of
interests
v. actual stay (important!!!!!
You can move freely!!!)
Jurisdiction: freedom to
chose the proceeding court
9
•
Arbitration:
–
Even against the state! (ICSID, ICC
court, etc.) – the Hungarian
method: banning arbitration against
the state
–
Consumers and arbitration:
problematic
•
Foreign courts
Jurisdiction: Kylie Minogue
case (eDate Advertising case)
10
•
Defamation:
Kylie Minogue case:
internet and damages: more open
approach
Jurisditcion: forum non
conveniens
11
•
First: forum non competent
•
Scottish principle moves into English law in the
second part of the 20th century
•
EU: Owusu v. Jackson
•
My personal opinon: is against human rights, esp.
against access to justice
•
A result of (or a compensation for) nationalism?
Applicable law: vulnerable
people received protection
12
•
Consumer law provisions
•
Product liability: if a
product makes damage to
someone
•
Labour law
Applicable law
13
•
Choice of law clauses are available
in more situations:
for damages (see e.g. Rome II)
For family relationships
•
The principle of closer connection
and closest connection as an
exception got widespread: more
freedom for judges
•
Country of origin principle:
uncommon
Law applicable to contracts:
the chaos in the USA
14
Different methods:
•
C
lassic “place of contracting”
•
Centre of gravity test (significant contact
approach
)
•
Better law approach
•
Governmental interest a
nalysis
•
Law of the forum
•
Place of performance
•
Second Restatement
:
The law of the
state/country that has the most significant
relationship to the transaction and the
parties
Recognition and
enforcement of judgments
15
•
International (bilateral)
agreements
•
Then: mutual recognition: if the
pther country also accepts our
judgments
•
Exequatur process: special
process for the recognition
EU: Brussels I
bis
: breaks through
these rules: automatic recognition
Recognition and enforcement
of public documents
16
•
Extremely important for legal practice: in
certain countries signature specimens are
necessary if you want to create a company
•
Certain countries did not accept the signatures
because of safety reasons
•
Hungary: a public document (e.g. a document
apprved by a notary public) can be enforced
easier
•
Consulate or Ministries
•
Apostille: special procedures were needed
Recently: recognition and enforcement got
widespread in the EU
Conclusion
17
Private international law
became
a tool and indicator of
tolerance and opennes of a
society.
The evolution of conflict of laws, from Switzerland's transformation to the impact of interdependency and nationalism on global relationships. Delve into the concepts of open and closed societies, and analyze the trends of interdependency, protectionism, and isolationism in the modern world.
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Presentation Transcript
Tamas Dezso Ziegler The magic evolution of conflict of laws (Internationalisation, interdependence and the role of tolerance) 1
Changes in conflict of laws Switzerland: from famine to success Public choices set the direction of future (Brexit, progression, nationalism and tolerance, etc.) Dissertation + conference: the role of nationality J rgen Basedow s book The Law of Open Societies. Brill, 2015. 2
Open societies Karl Popper: The Open Society and its Enemies. 1945. Closed and open societies Closed state: governed by an elite, asks for conformism, have authoritarian leaders, etc. Open society: tolerant, fights against intolerance, democratic system 3
Closed societyies are not based upon tradititional attempt to improve social conditions . Taboos rigidly regulate and domiate all aspects of life The right way is always determined, though difficulties must be overcome in following it. It is determined by taboos, by magical tribal institutions which can never be objects of critical consideration. collective tribal tradition, the institutions leave no room for personal responsibility. (Basedow cites Popper, p. 26.) Based upon the 4
Tendencies on the world Interdependency: states, persons and businesses are connected and depending on each other: Did Milan got closer to Germany? (Ole Lando) Commercial relations got more intensive Continents get unified : NAFTA, South America: UNASUR, ASEAN+6, Africa: Continental Free Trade Area (CFTA) Nationalism got weaker Migration: more people move (however, the % of population is not necessary higher than 100 years before) Swim against the stream: protectionism, isolationism, racism, retrograde politics 5
General observations: extreme fragmentation The Private International Law Hague Conference on EU: explicit rules hidden rules State legislation 6
General observations: role of citizenship fades away Kegel, 1977: The most important connecting principle in German private international law is the principle of nationality 1977, EGBGB (examples): Concluding mariages: if one of the parties has German nationality: german law Obligations: Damages: joint citizenship exception v Rome II joint habitual residence (also: affiliate of a German company made damage to a German citizen abroad: German law) In certain cases: compensation for a damage could not be higher than the provisions set by German law, IF defendant was German Contracts: may chose the country of citizenship USA: domicile was used instead!! 7
Habitual residence gets important EU legislation on choice of law (e.g. Rome I): a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence 1980 Rome Convention: most closely connection: residence Definition of habitual residence also changed: permanent interests v. actual stay (important!!!!! You can move freely!!!) party s habitual centre of 8
Jurisdiction: freedom to chose the proceeding court Arbitration: Even against the state! (ICSID, ICC court, etc.) method: banning arbitration against the state Consumers problematic Foreign courts the Hungarian and arbitration: 9
Jurisdiction: Kylie Minogue case (eDate Advertising case) Defamation: Kylie internet and damages: more open approach Minogue case: 10
Jurisditcion: forum non conveniens First: forum non competent Scottish principle moves into English law in the second part of the 20th century EU: Owusu v. Jackson My personal opinon: is against human rights, esp. against access to justice Aresult of (or a compensation for) nationalism? 11
Applicable law: vulnerable people received protection Consumer law provisions Product liability: product makes damage to someone Labour law if a 12
Applicable law Choice of law clauses are available in more situations: for damages (see e.g. Rome II) For family relationships The principle of closer connection and closest connection as an exception got widespread: more freedom for judges Country of origin uncommon principle: 13
Law applicable to contracts: the chaos in the USA Different methods: Classic place of contracting Centre of gravity test (significant contact approach) Better law approach Governmental interest analysis Law of the forum Place of performance Second Restatement: The law of the state/country that has the most significant relationship to the transaction and the parties 14
Recognition and enforcement of judgments International agreements Then: mutual recognition: if the pther country also accepts our judgments Exequatur process: process for the recognition EU: Brussels Ibis: breaks through these rules: automatic recognition (bilateral) special 15
Recognition and enforcement of public documents Extremely important for legal practice: in certain countries signature specimens are necessary if you want to create a company Certain countries did not accept the signatures because of safety reasons Hungary: a public document (e.g. a document apprved by a notary public) can be enforced easier Consulate or Ministries Apostille: special procedures were needed Recently: recognition and enforcement got widespread in the EU 16
Conclusion international Private became a tool and indicator of tolerance and opennes of a society. law 17
