Private International Law (2235.YR.007760.1)

General information

Type:	OBL	Curs:	1	Period:	S semester
ECTS Credits:	5 ECTS

Teaching Staff:

Classroom-based activities: 28 hours, 40% of total credits
Guided activities: 56 hours, 30% of credits
Independent study: 36 hours, 30% of credits

In 1999 the Treaty of Amsterdam entered into force and the European Community was empowered to take measures in the field of private international law. Article 67(4) TFEU provides that the Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. Article 81 TFEU deals with judicial co-operation in civil matters, and currently provides the legal basis for private international law matters (both patrimonial and family matters). Private cross border relationships have increased significantly within the European Union. These include consumers that buy goods or obtain services from companies in other Member States; companies that transact cross-border business; infringements of personality rights or other types of tortious conduct resulting in damage involving cross-border elements; marriage and divorce between nationals or residents from different Member States; and related questions on parental responsibility, maintenance, and matrimonial property.
Spain, as a Member State of the EU, is bound by European Private international law which is an autonomous legal system that teaches how these private situations, which introduce a foreign element (both European and from a third State), should be dealt with legally and how to resolve the issues that they raise, and which are: jurisdiction, applicable law and recognition and enforcement of foreign judgments. The solutions should be based not only in the traditional private international law methods encountered in the Spanish system of Private international law, but also taking into consideration European integration.

The course aims to introduce students to the Spanish system of Private international law which is directly affected by the described contemporary European reality, and to be able to understand the aspects and implications that the current legal division of the world entails for private legal relations. This means that students should be able to understand PIL issues, posed by certain private legal relations with special emphasis on contractual and non-contractual obligations, and to resolve problems of Private international law. Specific learning objectives for students are:

- Knowing how to identify, distinguish and describe the areas covered by Spanish Private international law.

- Knowing how to identify and distinguish the different regulatory levels for private international relationships which coexist under the Spanish system of Private international law: national, European and International.

- Understanding the European rules of international jurisdiction and recognition and enforcement of judgments in civil and commercial matters of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), or "Brussels I bis Regulation?; its relationship with the 2005 Hague Convention on Choice of Court Agreements, concluded by the EU as a member of the Hague Conference on PIL, and other International and multilateral Conventions, such as the 2007 Lugano Convention which extends the material scope of the Brussels regime to the EFTA States (Iceland, Norway and Switzerland). The student shall also understand when the Spanish national rules on international jurisdiction contained in the Ley Orgánica del Poder Judicial, as well as those concerning the recognition and enforcement of foreign judgments provided for under the Ley de Cooperación Jurídica Internacional en Materia Civil are applicable failing the application of the Brussels I bis Regulation or an International Convention.

- Identifying and understanding the different types of rules and legislative techniques applied by European judges to determine the law applicable to contractual and non-contractual obligations and contained in the following instruments: Rome I Regulation, No. 593/2008 (applicable law to contractual obligations) and Rome II Regulation, No. 864/2007 (applicable law to non-contractual obligations) as well as their relationship with other International and multilateral Conventions such as the CISG, the 1971 Hague Convention on the law applicable to traffic accidents and the 1973 Hague Convention on the law applicable to products liability. The student shall also understand when the Spanish national conflict of law rules contained in the Civil Code are applicable failing the application of the former instruments.

- Knowing the relationship between the rules of the different sectors covered by PIL (and by Private International Law, in general): jurisdiction, applicable law and recognition and enforcement of foreign judgments.

-Understanding the European Court of Justice rulings, interpreting the above mentioned regulations and their impact on the European (i.e. national) judges.

1. MODULE I: INTRODUCTION AND SOURCES 1. Introduction. What is Private international law? Understanding different terminology. Legal pluralism and legal diversity. The existence of cross-border private relationships. Three main sectors: jurisdiction, applicable law and recognition and enforcement. Cooperation of legal authorities. The different dimensions: national, European, international. 2. European Private International Law. The empowerment of the European Union in matters related to private international law. From the Treaty of Rome to date. The European Judicial Area. Cooperation in Civil Matters. Legal basis: art. 81 TFUE. Different measures.

2. MODULE II: JURISDICTION AND RECOGNITION AND ENFORCEMENT 3. Jurisdiction. General questions. What is jurisdiction? Brussels I bis Regulation (Regulation No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). Interpretation. Scope of application. Relationship with other conventions. 4. Heads of Jurisdiction. Exclusive jurisdiction. Party autonomy: Choice of court agreements. Entering an appearance. Jurisdiction over business to business contracts. Special jurisdiction in matters relating to a contract and in matters relating to tort, delict and quasi-delict. 5. The Verification of jurisdiction - Lis alibi pendens and related actions. The verification of jurisdiction - Lis alibi pendens between Member States. Lis abili pendens between a Member State and a third State. Related actions. 6. The recognition and enforcement of foreign judgments. Recognition and enforcement under Brussels I bis Regulation. Principles. Recognition and enforcement. Giving effect to a foreign judgement: res iudicata, enforceability effect and enter into a Public Registry. Exequatur. The various schemes and mechanisms for the recognition and enforcement of foreign judgments. Recognition and enforcement under Brussels I bis Regulation, the Lugano Convention of 2007 and the Ley de Cooperación Jurídica Internacional en Materia Civil.

3. MODULE III: APPLICABLE LAW 7. General ideas. Introduction to choice of law. Why apply foreign law? Traditional choice of law theories. The conflict of law rule. Its structure and function. The connecting factor. Lois de police. 8. Methodological problems and escape devices. Characterization. Renvoir. Public policy. References to Non-unified legal systems. Evidence of foreign law.

4. MODULE IV: CONTRACTS AND TORTS 9. Contracts Rome I Regulation (Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations). 10. Torts Rome II Regulation (Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations).

Teaching-learning methodology.
Each thematic section will be taught using lecture classes, participatory classes and complementary self-evaluated exercises.

The participatory classes will be undertaken in small groups under the guidance of an assigned faculty member. The latter will also announce the set assignments on the course webpage.

Learning modalities.
1. Lecture classes in which the course content will be explained.
2. Practical classroom activities in which assignments will be completed in conjunction with discussions on the arguments explaining the solutions.

ASSESSMENT BREAKDOWN

General

van Calster, European Private International Law. Commercial Litigation in the EU, 3rd ed., 2021.

Bodgan/Pertegás, Concise Introduction to EU Private International Law, 4th edition 2019.

Calvo-Caravaca/Carrascosa, European Private International Law, 2022.


Jurisdiction and Recognition and Enforcement

Briggs, Civil Jurisdiction and Judgments, 6th ed., 2015

Briggs, Agreements on Jurisdiction and Choice of Law, 2008.

Dickinson/Lein (eds), The Brussels I Regulation Recast, 2015.

Hartley, International commercial litigation: text, cases and materials on private international law, 2020.

Magnus/Mankowski, Brussels I bis Regulation, 2016.

Applicable law

Ferrari, Rome I Regulation, 2009.
Guinchard, Rome I and Rome II in practice, 2020.

Huber, Rome II Regulation 2011
McParland, The Rome I Regulation, 2015

Magnus/Mankowski, Rome I, 2016.

Magnus/Mankowski, Rome II, 2015.

Plender/Wilderspin, The European private international law of obligations, 2020.

Further readings will be published in the course website.

Online resources

Court of Justice of the European Union: https://curia.europa.eu/jcms/jcms/j_6/en/

Hague Conference on Private International Law: https://www.hcch.net/

European Association of Private International Law: https://eapil.org/

European Group for Private International Law (GEDIP): https://gedip-egpil.eu/fr/

European Justice Portal: https://e justice.europa.eu/home.do?action=home&plang=en&init=true

European Legislation Identifier (EUR-Lex): https://eur-lex.europa.eu/eli-register/about.html?locale=en

International Law Institute: https://www.idi-iil.org/fr/

United Nations Commission on International Trade Law (UNCITRAL): https://uncitral.un.org/

International Institute for the Unification of Private Law (UNIDROIT): https://www.unidroit.org/

Blogs in Private international law

Conflictus Legum. Derecho Internacional Privado Español: Legislación, jurisprudencia, doctrina y más: http://conflictuslegum.blogspot.com/

Conflict of Laws.Net. Views and News in Private International Law: https://conflictoflaws.net/

European Association of Private International Law Blog: https://eapil.org/blog/