Class 4

Question 1

Characterisation

Answer 1

requires the facts to be accommodated within one – perhaps more – legal categories to which a choice of law rule may be applied

Question 2

Vorfrage

Answer 2

questions on the exact characterisation under the applicable law

Question 3

Renvoi

Answer 3

A court, when confronted with a conflict of laws situation, not only considers the law of the foreign jurisdiction as stipulated by its own conflict of laws rules, but also takes into account the foreign jurisdiction’s conflict of laws rules

Question 4

Forum non conveniens

Answer 4

not a convenient place to hear
your case => other courts/jurisidictions are better suited

Question 5

Forum shopping

Answer 5

searching the best court/jurisdiction for your case (‘divorce tourism’, …)

Question 6

Res Judicata

Answer 6

judged matter, i.e. not hearing the same case again in another (foreign) court

Question 7

Lis alibi pendens

Answer 7

a case is already pending in another court

No parallel proceedings

Question 8

Goals of EU PIL

Answer 8

Uniformity

Legal certainty

Predictability

Question 9

General principles

Answer 9

Legal certainty

=The Regulation assigns jurisdiction to a particular MS (or MSs). Is
not generally concerned with the national rules on civil procedure, but there are places in the Regulation where it does assign a specific court within a MS

Actor forum sequitur rei

= The general principle is that one sues in the MS of the defendant (with exceptions!): actor sequitur forum rei. Where the ‘plaintiff’ or ‘claimant’ comes from (nationality; domicile), is as such not important.
But many deviations from the general rule.

Mutual trust

Free movement of judgments (‘fifth freedom’)

Question 10

Mutual Trust

Answer 10

Gasser

No to anti-suit injunctions: these go against the general idea of mutual trust. (Turner)

Mutual Trust only applies between MSs

MS courts do apply mutual trust even outside of BIa (Heirs of the Sultan of Sulu v Malaysia)

Mutual trust is very far-reaching principle -> European Union

Question 11

International element

Answer 11

One always needs an international element

Owusu

Maletic (illustration of the flexible interpretation of international element)

Inkreal

Question 12

Civil and Commercial matters

Answer 12

Eurocontrol

Article 1 should be given an autonomous meaning

A dispute between an individual and the state is NOT a civil and commercial matter when the public body is exercising its public powers (acta iure imperii)

When the public body is acting in a private capacity, the case can be a civil and commercial matter (Sapir)

The exact interpretation remains an open question & highly
dependent on the case at hand.