Class 3 Flashcards
(16 cards)
Empires & ‘intergentile/interpersonal’ law
Intergentile or interpersonal law= conflict of laws between different peoples (often on the basis of race/ethnicity/religion), which all have different laws relating to personal status matters (and beyond)
Consular Courts
Consular court = a court in a consulate/embassy for hearing disputes between nationals under the national laws (not of the State one was in).
In theory also actor forum sequitur rei (= forum of the defendant),
i.e. the consular court of the defendant if cases between different nationalities, but also ad-hoc mixed tribunal for ‘mixed cases’.
Always based on treaties (capitulations, unequal treaties, …).
Mixed Courts
Mixed Courts were an evolution out of consular courts (and thus personal jurisdiction/extraterritoriality) at the height of the colonial era (19-20th century)
‘internationalised’ national courts -with mixed benches & bar and using a mixture of legal traditions and codes
Established in certain non- colonized countries for dealing with ‘mixed’ cases: cases involving a ‘foreign’ or
‘international’ element.
The Mixed courts in Egypt (1876 – 1949) & Tangier (1923
– 1956/7). Many others existed elsewhere (Siam, China (Shanghai), Turkey, …)
Colonial ‘blueprints’ for later EU & UN and national court systems
Tangier: The 8 jurisdictions
The Sharia Courts
The Rabbinate Court
(The Ecclesial Courts)
The Court of the Mendoub
The American Consular Court (and Italian until 1928)
The Mixed Court
The Special Tribunal of
the State Bank
(Cap Spartel Arbitration Tribunal)
Tangier: Mixed Court
Jurisdiction: nearly all cases with a ‘foreign’ element but many jurisdictional issues and conflicts with other courts & Committee of Control
=> internal PIL of the Zone.
Applicable law: mostly ‘zonal law’, either deriving from the Statutory annexes or new laws voted by the International Legislative Assembly, but sometimes also non-zonal national laws.
Bench and Bar: Mixed.
Hybrid Civil - Common Law system (with Islamic law influences)
Tangier: The Rabbinate Courts
First Instance + Appeal
Jurisdiction: personal status matters of the Jewish community
Applicable law: Jewish laws & customs => but depending on the exact background of the parties involved (i.e. Sephardic <-
> local, …)
Tangier: American Consular Court
Consular court (first instance + appeal) until 1956
+- 100 consular courts
cases in Morocco in 1950’s
American federal laws + ‘common law’
Tangier: The First Modern Tax Haven
Treaty-based Zone (and regional system) with up to 8 legal & court systems – loopholes & forum shopping
‘Economic Equality’ between nationals of signatory states
Multilingual Zone: French and Spanish as main official languages (and Arabic - Hebrew to some extent, as well as others)
No currency controls, numerous banks (up to 145 at one point), mostly visa & work- permit free (Slavik-affaire & others), barely any taxes, direct flights from Paris etc.
Result : A true “free haven” & “fiscal garden of Eden”,
After World War II dubbed ‘the gold safe’ of Europe.
Law & Economy
Friedrich Carl von Savigny (1779 – 1861)
One of the main ‘founders’ of modern private international law
The Hague Conference on Private International Law
‘PIL movement in Europe’
Established in 1893 as an intergovernmental organisation
Goal: “the progressive unification of the rules of private international law” (Art. 1 of the Statute).
Lex Mercatoria & UNIDROIT
Lex Mercatoria: ‘international/transnational commercial law’ based on common practices. No real texts, but customs. Sometimes designated as applicable law in international commercial arbitration.
UNIDROIT = intergovernmental organisation which aims to modernize, harmonise and coordinate private and in particular, commercial law between States.
New York Convention 1958
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Most important treaty in International Commercial Arbitration
172 parties
In essence:
an arbitration award issued in any other state can generally be freely enforced in any other contracting state, only subject to certain, limited defenses.
History of EU PIL (1)
Bilateral treaties
Brussels Convention = EEX Convention (1968), concluded between the, at the time, 6 Members
‘Mission creep’: Meant mostly to facilitate recognition and enforcement: free movement of judgments, however this quickly became an exercise in jurisdiction
This is an international agreement, not an EU- instrument
No review of the Court possible until the Luxemburg Protocol in 1971
Works with Reports
Jenard: still an authoritative source of interpretation
History of EU PIL (2)
Lugano Convention = between the EU Member States and the countries of EFTA (European Free Trade Association)
Switzerland
Norway
Iceland
1999 Tampere meeting
Creation of an area of freedom, security and justice
Cornerstone: facilitation of ‘free movement of judgments’
Gradually however the ‘EU citizen’ has become the cornerstone of harmonisation efforts in EU PIL
History of EU PIL (3)
EEX Convention became a Regulation (Brussels-I: Reg
44/2001)
Adopted on the basis of Article 65 EC Treaty (Amsterdam)
History of BE PIL
Before 2004 there was no real codified Belgian PIL, i.e. het Wetboek Internationaal Privaatrecht (!)
Belgian PIL was based on some articles in BW, Ger. W and case-law
WIPR mostly superseded by EU or International Law, but remains default
