Judgments Act 2012 The purpose of the Jurisdiction of Courts and Enforcement of Judgments Act 2012 A to give effect to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters signed at Lugano on 30 October 2007. This Convention supersedes the 1988 Convention of the same name which involves the Member States of the EU and the European […]
Convention on the law applicable to contractual obligations (Rome Convention) Convention 80/934/EEC on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 The convention establishes uniform rules concerning the law applicable to contractual obligations in the EU.It has applied since 1 January 1991. Scope The convention on the law applicable to contractual obligations was opened for signature in Rome […]
More effective rules on insolvency proceedings across EU borders Regulation (EU) 2015/848 — insolvency proceedings It aims to ensure the efficient administration of insolvency proceedings involving an individual or business with business activities or financial interests in an European Union (EU) country other than the one in which they are usually based. It recasts and replaces Regulation (EC) No 1346/2000. General The regulation sets out […]
Jurisdiction and applicable law in succession matters and European Certificate of Succession Regulation (EU) No 650/2012 on matters of succession and on the creation of a European Certificate of Succession It provides legal certainty to beneficiaries of international successions, avoids conflicting decisions and simplifies proceedings. It thus makes it easier for beneficiaries in another EU country to enjoy the rights which have been granted or […]
The law applicable to non-contractual obligations Regulation (EC) No 864/2007 — the law applicable to non-contractual obligations (Rome II) —It brings greater legal certainty as to the law applicable with respect to non-contractual obligations, in particular in cases of tort (a wrong under civil law) and delict (civil liability). —It also ensures a reasonable balance between the interests of the person claimed to be liable […]
Conflict of Laws Conflicts of law, otherwise described as private international law, deals with legal issues that arise when more than two States’ legal systems /or jurisdictions are involved in a transaction or event. The rules decide which country’s law applies. The rules also decide which country’s courts have the sole or primary right to hear disputes. They also deal with the enforcement of judgments […]
General Questions about which law is to apply arise where there is an international element. A separate issue to the issue of which Court hears the dispute is the question of which country’s or jurisdiction’s laws apply. For example, there may be a contract by which an Irish trader agrees to sell goods to a German buyer in France. In the case of a claim […]
Protective EU Rules The EU rules on the choice of law seek to protect consumers and employees. These rules override whatever may be contained in a contract. The consumer rules apply where the purpose of the contract is to supply goods or services to a person outside of his or her trade or profession. Mandatory requirements are requirements that are imposed irrespective of the country […]
Overview The conflicts of law rules for tort and other non-contractual matters have now been revised significantly as of January 2009 by European Union Regulation. As with the judgments regulation, the European legislation applies directly in all States and has the direct force of law. Parties have the freedom of choice to submit non-contractual obligations to their chosen law. They may agree on the law […]
Choice In Principle Permitted Parties may submit non-contractual obligations to the law of their choice. That is, they may usually choose which law to apply. This also applies to non-contractual obligations other than those arising from unfair competition or the infringement of intellectual property rights. Conditions are applied in order to protect consumers and weaker parties. Where the agreement is entered after the damage, these […]
Location of Intangibles Intangible assets give rise to difficulties. Difficulties arise in relation to the situation of intangible assets. The particular issues will depend on the class of asset concerned. An intangible asset is usually situated where it can be recovered or enforced. Generally intellectual property rights are situated where they are registered. Shares are situated where registered. Debts are situated where the debtor resides. […]
Where a person dies his assets vest in his personal representative. This may be the executor appointed by will or an administrator, generally the person with the greatest entitlement to the net assets. The conflict of law rules differ depending on the type of asset concerned. Generally, succession to immovable goods is determined by the law of the place in which they are situated. In […]
Modern Registrars In modern times, technology and the drive for a more efficient system for holding shares have fundamentally changed the means by which shares are held in public companies and in some private companies. Many transfers are effected by electronic entries in a securities account. Most publicly traded securities have been dematerialised. Where not dematerialised, many have been immobilised by the lodgement of the […]
Proceeds of Sale Where a foreign immovable is sold, the rights of the persons entitled to the proceeds do not cease merely because the proceeds have been brought into the jurisdiction. The law of the place continues to apply to the proceeds of sale and debts to be paid out of them in accordance with the priorities recognised by that law. A trust declared over […]
Movables Conflict of laws distinguish between movable and immovable property. Generally, immovable property is governed by the law of the place where it is situated. This determines such matters as the nature of the property rights and their transfer and inheritance. There is a distinction between tangible and intangible movables. The former are physical objects, and the latter are in the nature of claims that […]
Immovables Conflict of laws distinguish between movable and immovable property. Generally, immovable property is governed by the law of the place where it is situated. This determines such matters as the nature of the property rights and their transfer and inheritance. A distinction is made between moveable and immovable property. Moveable property generally includes any rights to land or buildings. How the classification works will […]
EU Regulation The EU Regulation on Succession Law, known as Brussels IV, became law in August 2015. It provides a uniform system of recognition of succession laws based primarily on the deceased’s habitual residence. No distinction is made between movable assets and immovable assets. The Regulation governs the conflict of law rules for succession, both testate and intestate, between EU States who are bound by […]
The Rome Regulation replaced the Rome Convention in 2009. The Rome Convention has replaced common law rules on choice of law in 1988. It applies to matters within its scope even if the contracts have no association with the EU. The Regulation and Convention are matters of European Union law and the approach taken by EU law to interpretation is different to that at common […]
Overview The Rome Convention and Rome Regulations apply to most contracts. Different rules may apply to different aspects of the contract. Generally, the existence and validity of a contract are decided by the laws which would govern it if it is valid. This can be complicated where there is a choice of law clause. Once the applicable law is determined under the Convention, there are […]
Extent of Applicable Law The general position is that all issues arising under the contract are governed by the applicable law except where otherwise provided under the Convention, such as in the case of material validity and incapacity. Issues of interpretation of the contract are governed in accordance with the law chosen or the law applicable under the Convention when none is chosen. It is […]
Choice of Contract The Rome Convention and Rome I Regulation relate to the law applicable to a contract. The basic principle is that the choice of law expressed by the parties is respected. If it is not expressed, the Convention defines the applicable law. The Convention applies the domestic law of the jurisdiction chosen. It does not apply its conflict of laws rules. The concept […]
Overview Conflicts of law issues may arise where a civil wrong is committed in one jurisdiction, but injury results in another. There is a wide range of civil wrongs ranging from nuisance, defamation and trespass, where liability may be strict, to negligence and to torts requiring intent or recklessness such as fraudulent misrepresentation. Conflict issues may arise in relation to the broad range of liability […]
Domestic Rule Apply Courts apply their own procedural and evidence rules. This includes rules relating to the course of court proceedings and methods of execution. Courts may apply the foreign substantive law of another jurisdiction. However, they will apply their own procedural rules. The principle that the domestic law applies procedural matters, is a practical necessity. Although a court may hear of evidence of foreign […]
Overview There are two broad categories of restitution. In one type of case, the defendant’s claim is based solely on the defendant being unjustly enriched. In other types of case, the claim is is based on unfair enrichment due to a wrong analaogous to a breach of contract or tort. There are different conflicts of law rules depending on the type of interest concerned. Where […]