|Course code: 351606||Subject title: PRIVATE INTERNATIONAL LAW|
|Credits: 6||Type of subject: Mandatory||Year: 3||Period: 2º S|
|BELINTXON MARTIN, UNAI (Resp) [Mentoring ]||ORBEGOZO MIGUEL, XABIER [Mentoring ]|
PRIVATE LAW / PRIVATE INTERNATIONAL LAW
|Activity||On-site class time||Non-class time|
|A-1 ¿ Expositive/participatory lectures||45|
|A-2 ¿ Practical cases||15||15|
|A-3 ¿ Debates and group assignments|
|A-4 ¿ Work on the assignments|
|A-5 ¿ Individual reading|
|A-6 ¿ Individual study||71|
|A-7 ¿ Exams or other evaluation tests||4|
|A-8 ¿ Individual tutorship|
|B-5||A1, A2, A3, A4, A5, A6, A7|
|G-1, G-3, G-16, G-23||A1, A5, A6, A7|
|G-1, G-2, G-6, G-7, G-9, G-22||A2, A3, A4|
|E-a.1, E-a.2, E-a.8||A1, A5, A6, A7|
|E-a.2, E-a.3, E-a.5, E-a.6, E-a.8||A2, A3, A4|
The course is given in English.
|Weight (%)||It allows
|R11, R179, R181||Attendance and active participation||10%||No.|
|R11, R15, R60, R66, R152, R153, R179, R181, R185, R205||Case resolution and/or works||35%||Yes. Written proof.|
|R11, R15, R60, R66, R153, R179, R185, R205||Final exam||55%||Yes.||5/10*|
*To overcome the subject, a qualification equal to or greater than 5 out of 10 is required in the final examination (or proportional to its assessment). If a note of less than 5 out of 10 is obtained in the final examination, the qualification of the continuous assessment shall be taken into account, without the final qualification of the subject, plus the continuous qualification and the final qualification, exceeding 4.9 out of 10
Introduction to Private International Law. Specifically focusing on international jurisdiction, applicable law and international effectiveness of decisions.
PRIVATE INTERNATIONAL LAW: PRELIMINARY CONSIDERATIONS
PRIVATE INTERNATIONAL LAW: SOURCES IN SPANISH LAW
INTERNATIONAL JURISDICTION - CONFLICT OF JURISDICTIONS: INTRODUCTORY REMARKS
REGULATION BY INTERNATIONAL INSTRUMENTS.
1. International instruments and international jurisdiction.
2. Regulation (EU) 1215/2012.
3. Regulation: interpretation of its rules.
4. Relations of the Regulations with international conventions.
5. Scope of spatial application of the Regulation.
6. Scope of temporary application of the Regulation.
7. Scope of material application of the Regulation.
8. Personal scope of the Regulation.
9. International jurisdiction in the Regulations: general system operation.
10. Exclusive forums.
11. Forum of express submission.
12. Forum of tacit submission.
13. Forum of the defendant's domicile.
14. Special forums by reason of the matter.
15. Forums of procedural link: passive joint venture, guarantee actions and third party intervention, counterclaim and accumulation of real and personal actions.
16. Forums to adopt provisional and precautionary measures.
17. Rules of application in the Regulation.
18. Ex officio control of competition in the Regulation.
19. Procedural guarantees in the Regulation.
20. Litispendency in the Regulation.
21. Related demands in the Regulation.
22. The Lugano II Convention of October 30, 2007.
23. Other international conventions on international jurisdiction.
24. The Brussels Convention of September 27, 1968.
25. Other European Regulations.
INTERNAL PRODUCTION REGIME
1. Regulation of international jurisdiction in the LOPJ: general features. The 2015 reform
2. Forum of need.
3. Forum Non Conveniens.
4. Lack of harmony between the rules of international jurisdiction and internal territorial competence.
5. General operation of the LOPJ's international jurisdiction.
6. Exclusive forums.
7. Submission of the parties to the Spanish courts: general aspects.
8. Express submission of the parties to the Spanish courts.
9. Tacit submission of the parties to the Spanish courts.
10. Forum of the defendant's domicile in Spain.
11. Special forums.
12. Ex officio control of international jurisdiction.
13. International lis pendens.
14. Submission to foreign courts.
15. Precautionary and provisional measures.
REGULATORY METHODS AND REGULATORY TECHNIQUES OF PRIVATE INTERNATIONAL LAW
1. Types of norms in private international law: conflict norms, special material norms and extension norms.
2. Coexistence of different types of PIL rules.
3. Article 8.1 Cc. and the application of public law in international cases.
4. The conflict rule: concept.
5. The conflict rule: structure.
6. Factual assumption of the conflict rule.
7. Connection point of the conflict rule. Concept and classes.
8. Connection point of the conflict rule. Selection of connection points.
9. Legal consequence of the conflict rule.
10. Imperative nature of the conflict rule.
11.Exception clause and escape clause.
12. The crisis of the conflictual method.
13. Bilateral conflict rule and unilateral conflict rule.
PROBLEMS OF APPLICATION OF THE CONFLICT RULE (I)
1. The problems of application of the conflict rule.
2. Temporary succession of the conflict rule.
3. Determination of the applicable conflict rule: qualification.
4. The qualification and unknown institutions in Spanish Law.
5. Qualification in international agreements.
6. The previous question.
7. Qualification of the circumstance used as a connection point.
8. Mobile conflict.
9. Fraud of law.
10. Forwarding: concept, assumptions and doctrinal discussion.
11. Forwarding in international conventions.
12. The forwarding in the rules of internal production: art.12.2 of the Civil Code.
13. Referral to plurilegislative regulations ad extra.
PROBLEMS OF APPLICATION OF THE CONFLICT RULE (II)
1. Judicial application of foreign law: historical background.
2. Procedural treatment of foreign law: current regulation.
3. Allegation of foreign law.
4. Proof of foreign law: burden of proof.
5. Proof of foreign law: impossibility of proof.
6. Evidence of foreign law: opportune procedural moment.
7. Evidence of foreign law: object.
8. Evidence of foreign law: evidence.
9. Comprehensive application of foreign law.
10. Second grade and adaptation problems.
11. Transitory international conflict.
12. Application of Laws of States not recognized by Spain.
13. Application of foreign laws contrary to the Constitution of origin.
14. Appeal for violation of foreign law.
15. International public order: concept, function and characters.
16. International public order: regulation by international conventions.
17. International public order: regulation in PIL. of internal production.
18. Extrajudicial application of foreign law.
INTERNAL CONFLICTS IN THE SPANISH SYSTEM OF PRIVATE INTERNATIONAL LAW.
1. Introduction. Internal conflicts.
2. Complex arrangements and internal conflicts. Types of internal conflicts.
3. The internal dimension of a state PIL system.
4. The internal dimension of the Spanish system.
5. Historical background.
6. The constitutional parameters. The jurisprudence of the Constitutional Court.
7. Internal conflicts of laws in the field of Civil Law.
8. The civil neighborhood. Its legal regime.
9. The regulation of internal conflicts.
10. Autonomous communities and internal conflicts.
EXTRATERRITORIAL EFFECTIVENESS OF DECISIONS:
1. Relativity of private international law and effects of foreign decisions.
2. Foreign decisions likely to produce effects in Spain.
5. Control procedure for access to the Registry.
6. Principle of mutual recognition.
7. Modification of foreign resolutions.
EFFECTS IN SPAIN OF JUDGMENTS IN CONTENTIOUS PROCEEDINGS.
1. International instruments on recognition and enforcement of foreign judgments in Spain.
2. Regulation (EU) 1215/2012: general characteristics.
3. Recognition and exequatur in Regulation 1215/2012.
4. Incidental recognition in the Regulation.
5. Recognition by homologation in the Regulation.
6. Enforcement in the Regulation.
9. Bilateral agreements.
10. International instruments on specific matters.
11. Internal production regime: A) General considerations. The LCJIMC of 2015. B) The conventional regime. C) The regime of conditions.
LAW APPLICABLE TO THE PROCESS WITH FOREIGN ELEMENTS AND INTERNATIONAL JUDICIAL ASSISTANCE.
1. The Law applicable to the process: the Lex fori reit processum.
2. Capacity of the foreign litigant.
4. Representation and defense in the process.
5. Free legal assistance.
6. Surety bond in court.
8. The test: general aspects.
9. Proof: documents issued abroad.
10. International legal assistance: general aspects.
11. Notifications of judicial acts abroad: regime provided for international instruments.
12. Obtaining evidence abroad: regime provided for international instruments.
13. Legal notifications and evidence abroad in the absence of an applicable international instrument.
14. Practice of international tests and notifications in Spain in the absence of an applicable international instrument.
FORM OF LEGAL ACTS
1. Introduction: conceptions and function of the form in relation to legal acts and businesses.
2. Inspiring principles of the form in our order.
3. The form in the PIL Spanish: plurality of regimes on Law applicable to the form.
4. The form as a matter subject to autonomous connection.
5. The rating.
6. The solutions of article 11 of the CC: a system of alternative connections.
7. General connections: Locues regit actum, Lex causae; Lex patriae
8. Special Connections: Lex Rei Sitae, Auctor Regit Actum
9. The art. 11.2 CC: "derogatory scope of the Lex Causae"
THE NATURAL PERSON
1. Real scope of art. 9.1 CC: capacity of the natural person.
2. Connection point of art. 9.1 Cc: nationality of the natural person.
3. Multiple nationality.
5. People with undetermined nationality and refugees.
6. Capacity of the natural person.
7. Legal capacity of the natural person.
8. Capacity to act of the natural person.
9. Declaration of absence and death.
10. Older and younger.
12. Incapacitation and protection measures for the elderly disabled.
13. Personality rights in general.
14. Personality rights: name of the natural person.
MARRIAGE AND DOMESTIC PARTNERS
1. Family models and private international law.
2. Promise of marriage and betrothal.
3. Law applicable to matrimonial capacity.
4. Law applicable to matrimonial consent in general.
5. Law applicable to matrimonial consent: international marriages of complacency.
6. Law applicable to matrimonial consent: polygamy.
7. Law applicable to the manner of celebration of the marriage.
8. Registration of the marriage in the Civil Registry.
9. Effects of marriage. Regulation (EU) 2016/1103.
10. Private international law and de facto partnerships: existence, effects and dissolution. Regulation (EU) 2016/1104.
1. International jurisdiction and international contracting
2. Law applicable to international contracts: basic aspects.
3. Law applicable to international contracts: Nueva Lex Mercatoria.
4. Law applicable to international contracts: Regulation (EC) 593/2008 on the Law applicable to contractual obligations.
5. Interpretation of the Rome I Regulation.
6. Scope of application of the Rome I Regulation.
7. Law applicable to the contract: general aspects.
8. Law applicable to the contract: the choice of law. Autonomy of the conflictual will.
9. Law applicable to the contract: the choice of law. Terms.
10. Law applicable to the contract: the choice of law. Possibilities of the parties.
11. Law applicable to the contract in the absence of choice: system of presumptions.
12. Matters regulated by the Lex Contractus.
13. International contract and overriding mandatory provisions.
14. Law applicable to the form of the contract.
15. Law applicable to contractual capacity and "national interest exception".
16. Law applicable to the modalities of execution of the obligations.
17. Law applicable to the test of obligations.
18. Law applicable to legal subrogation.
19. Law applicable to international commercial contract and arbitration.
20. International employment contract: international jurisdiction.
21. International employment contract: Applicable law.
22. Particular issues of the international employment contract.
23. International consumer contracts.
24. International transport contracts.
The notes given by the professor will be based and complemented by the following:
J. L. Iriarte Ángel, M. Casado Abarquero, A. Muñoz Fernández, Código de Derecho Intrernacional Privado, 19ª edición, Cizur Menor, Aranzadi, 2023.
Adrian Briggs, The Conflict of Laws, fourth edition, Clarendon Law Series, 2019.
Adrian Briggs, Civil Jurisdiction and Judgements, Lloyd´s Commercial Law Library, London, 2015.
Fentiman, R., International Commercial Litigation, Second Edition, Oxford University Press, 2015.
L. Calvo Caravaca, J. Carrascosa González, Compendio de Derecho internacional privado, Editorial Rapid Centro Color, 5. Edición, Murcia, 2023.
Van Calster, Geert, European Private International Law: Commercial Litigation in the EU, 2021, 3ª ed.