Law Governing Rights of
Personality, Property, Int’l
Family Law (Part 1)
Dr. Mateusz Pilich
Chair of Int’l Private and Trade Law,
University of Warsaw
Law Applicable
to International Protection
of Personality Rights
Introduction
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A non-unified question of delictual/tortious nature, deliberately excluded
from the scope of Rome II, see Article 1(2)(g):
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… shall be excluded from the scope of this Regulation… non-contractual
obligations arising out of violations of privacy and rights relating
to personality, including defamation
The right to be 'let alone' (Warren & Brandeis)
National reply: Article 16(2) PILA
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A natural person whose personal rights were threatened or infringed
may claim protection under the law of the state where the event
giving rise to a threat or infringement has occurred, or under the
law of the state where the consequences of the infringement
occurred.
Case Study – Int'l Protection
Against Internet Personality Violations
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A non-unified question of delictual/tortious nature, deliberately excluded from the
scope of Rome II, see Article 1(2)(g):
 An Austrian Web portal has published a report of the court case against a Polish
radical right supporter convicted of a murder of a homosexual person. The
convicted person habitually resident in England sues in Poland the Web
administrator for giving up defamatory publications and moral damages (conf.
Joined Cases C-509/09 eDate and C-161/10 Martinez)
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According to the ECJ, the jurisdiction the option of bringing an action for liability, in
respect of all the damage caused, either before the courts of the Member State in
which the publisher of that content is established or before the courts of the
Member State in which the centre of the aggravated person's interests is
based.
The aggravated person may also, in respect of the damage caused in a
particular country, bring an action before the courts of the Member State
in whose territory content placed online is or has been accessible
(practically everywhere in the EU!)
Conclusions
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Article 16(2) PILA vs jurisdiction:
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The national rule gives the limited choice to the aggravated party
The law of the cause-the law of the effects
Difficult to adjust to the scattered jurisdiction rules (they provoke, esp. in the
latter case, to adjudicate under the court's own law)
If Polish law has jurisdiction only in respect to the damage caused in this
country, then the plaintiff may choose among Polish and Austrian law
But assuming that the plaintiff lives in Poland (not in the UK) and sues in respect
of the whole damage, then he would have had to choose either the law of the
country in which the defendant is established or the laws of all the countries
in which the effects of the damage are felt ('mosaic principle')!
eDate & Martinez increases the need for the uniform conflicts rules for the
personality infringements in the EU
Reasonable interpretation of Article 16(2) with regard to the place of
consequences of the infringement (=a habitual residence of the aggravated
party?)
Law Applicable
to Ownership
and Other Property Rights
Characterization Issues
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Idea of the ownership (esp. tangible property right) and other rights in
rem rooted in the ‘civil law’ culture of the Continental Europe
Distinction based on the nature of a right being either relative (person
vs person) or absolute (person vs thing)
Absolute property rights are exclusive
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No-one allowed to possess or to use the thing owned by someone, unless
permitted by the owner
Hard to predict in abstracto what is the ownership/property right,
remarkable differences between private law rules of different States
(e.g. the general right of retention)
Importance of the problem – investments and collaterals
Connecting factor is the law at the place where the object of the
rights is situated (lex rei sitae)
Principle
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LEX REI SITAE – Article 41 PIL, the local law of the place (country) of
the actual situation of the property object
No legal fiction
Actual and (possibly) changeable place matters
Renvoi problem – some countries keep the principle of the lex domicilii
of the owner (law of his/her domicile – permanent residence) for the
movables, remission not excluded by Article 5 PIL
Acquiring/Loss of the title – lex rei sitae at the time of the triggering
event (as, inter alia, the tradition of a thing, the assignment of the
property right, etc.)
Examples
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Anton G., living in Berlin, lost his Audi A6 car. One day he gets to know that after having
been stolen, the vehicle was bought by the person permanently resident in Poznan, who
was unaware of his illegal possession due to the perfect forgery of the German car
registration certificate. Anton G. wants to have his car back relying on Sec. 935 of the
German Civil Code (BGB) limiting the acquisitive prescription of the thing stolen or
otherwise unwillingly lost by the owner. The possibility of vindication, the period of time
necessary in order to acquire the title by the possessor, etc. shall be subject to the law of
the place where the car physically is (be it Poland or any other country).
The Polish international road carrier Alfa Sp. z o.o. (company limited) opens its branch in
Germany in order to be immediately accessible to its foreign clients. It consecutively moves
there a number of trucks which so far have been registered in Poland and pledged with the
registered charge (otherwise spoken, a ‘chattel mortgage’, in Polish: zastaw rejestrowy).
German law does not know such an institution (the pledge requires the pledger to give
away the pledged object to the pledgee). The registered charge is believed to persist but in
a changed form – for instance, after the trucks passed the State border, the pledgee
becomes their formal owner even though the pledger remains the possessor of the cars.
Exceptions to the Principle
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Ships, aircraft and railway vehicles – as they permanently cross
the State borders, it is believed that they should be legally attached to
a certain place – the law applicable to the property rights to such
chattels is the law at the place of their registration (lex libri) or, in
the absence of the registration, where they harbored, have their
mother station, or any similar place – see Article 42 PIL
Goods in transportation (res in transitu) – if the carrier passes the
third country (which is not the country of the destination of the goods),
or if he drives through the territory being subject to no State
sovereignty, there must be another connecting factor than the physical
location (practically speaking, it is either the law of the place of
departure or of the destination, in Poland the former attitude prevails) –
see Article 43 PIL
Property Rights to Securities and
Intangible Objects
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Flexibility of Article 41(1) PIL (reference not to the „thing” but to the
„object of the right”
Intangible property (e.g. rights) has no real situation
Sometimes the situation may be derived from the basic circumstances
(e.g. the pledged mortgage placed in the country where the immovable
is situated)
More obvious – securities, see Article 44
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Contractual aspects – securities are based on the contract between the holder and the
issuer
Proprietary aspects – securities as documents held by the person whose title has to be
proven in order to receive the performance/profits
Scope of Article 44 – covers only proprietary aspects and only as
regards the dematerialized securities entered into an account (other
securities governed by the principle of the lex cartae sitae)
Intellectual Property Rights
in the Private Int'l Law
Intellectual Property Rights (IPR)
Basic Issues
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Rising importance of IPR in the modern economy
Scope of the notion and the respective international law acts, see e.g.
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Traditional model: approaching the property rights concerning tangibles, the
absolute character (effects against third parties)
Conventions focused on their substantive law aspects, not so much on the
procedural and choice-of-law ones
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Copyright (1886 Berne Convention for the Protection of Literary and Artistic Works,
1952 Geneva Universal Copyright Convention)
Patents, trademarks, industrial patterns (1883 Paris Convention for the
Protection of Industrial Property)
Database right (the newest and having the poorest international legal regulation)
IPR protected within the scope of the international economic cooperation conventions
(TRIPS Agreement, WIPO)
Mutual obligations among contracting states, the so-called assimilation principle
Bundle of IPRs (a distinct IPR parallelly existing in each country)
Article 14bis of the Berne Convention as an expression of the territorialistic
approach in the conflict of laws
Article 46 PILA
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Article 46. 1. The creation, content and termination of rights to
intellectual property are governed by the law of the state, in which
they are exercised.
2. Paragraph 1 also applies to the dispositions of the rights to
intellectual property and to the determination of the priority of these
rights.
3. The protection of the rights to intellectual property is subject to
the law of the state under which the protection is sought.
All these legal rules designate the same law applicable:
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Where the IPRs are exercised = Under which the protection is sought
Example. A Polish composer sues in Poland a party who distributed
a CD containing collected songs written by the former. The CD is
sold in Poland, the Czech and Slovak Republic. The copyright is
infringed in all these countries and their law applies respectively to
the effects of the IPR violation.
The Interplay Between the Polish
Law and Article 8 Rome II
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Article 8 Rome II. 1. The law applicable to a non-contractual obligation
arising from an infringement of an intellectual property right shall be the
law of the country for which protection is claimed.
2. In the case of a non-contractual obligation arising from an infringement
of a unitary Community intellectual property right, the law applicable shall,
for any question that is not governed by the relevant Community
instrument, be the law of the country in which the act of infringement was
committed.
3. The law applicable under this Article may not be derogated from by an
agreement pursuant to Article 14.
A complex relation:
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A non-contractual obligation usually is one of the effects of the IPR infringement
Article 8 RII covers many legal remedies left to the interested person (first and
foremost, the action for damages, royalties, etc.)
Polish law gives the way to the European instrument, Article 46(3) PILA does not
apply to cases where there is an 'obligation' between the entitled person and the
other party
International Family Law
Polish Int’l Family Law
and EU Law
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The family matters - the sphere of competence of
the sovereign States, see Article 9 of the Charter of
Fundamental Rights of the EU (Exhibits)
Impact of the EU law on the Member States' PIL
legislation- International Family Law as the field of
the shared competence (of the EU and its Members
States)
Conf. Article 81(3) TFEU (see Exhibits) – special
legislative procedure and consent of all the States
necessary for the adoption of the EU measure
Law Applicable
to the Conclusion
of the Marriage
Law Applicable
to the Substance of Marriage
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The scope of the law applicable pursuant to
Article 48 PIL 2011 (the ability to conclude
marriage):
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the minimum age for marriage
the consent of the third person or the State
authority to the marriage
the reasons fot which the marriage shall be null
and void or becomes voidable (sometimes called
the ‘matrimonial impediments’)
Documentary Evidence Aspects
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Registration of natural persons' status
 Public law matters, State organs involved
 Polish Vital Records Offices (Urzędy Stanu Cywilnego, USC), all acts
performed and documents issued by the Head of the Office (kierownik USC)
or his deputy
 Vital records may be (i) birth certificates, (ii) marriage licences,
(iii) death certificates
Legal character of the foreign vital records
 Certificate of the vital record made up abroad remains the sole evidence
of the events certified therein, even where it has not been transcribed to
the Polish registry of vital records (Polish S.C., III CZP 58/12)
 Transcription of foreign documents to the Polish civil status registers (ksiegi
stanu cywilnego)
Problem of the legal 'recognition' of marriages, filiation, etc.
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in practical terms, does not refer to the choice-of-law rules
See ECJ ruling in C-336/94 Dafeki
Connecting Factors
– The Substance
Example
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Polish national Anna J. was converted to Islam. In
2010 she met via Internet a man from the United Arab
Emirates, whom she intends to marry. The fiancé had
already been married.
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Should Anna J. be allowed to enter into the union? Would it
have any legal effects in Poland?
Case - Comments
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Article 48 PIL 2011: connecting factor is the nationality of the person entering
into marriage (if, however, the natural person is stateless or a refugee, his or her
domicile or habitual residence shall decide)
The marriage concluded between two given persons, the ability to marry may differ
Polygamy
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National authorities' approach
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In many Near East (and in particular Arab) countries it is accepted and practised
It is contrary to the Polish (and European) model of the marital union
Inadmissibility of polygamy as the so-called ‘two-side impediment’- the union inadmissible
with regard to both even if the opposite provided by the law of one party
Public policy exception as the UAE national
In practical tems, Polish authorities can make hardly anything to oppose to the
planned marriage
Effects: there is no ‘recognition of marriage’, which may be limping
At the same time marriage is legally existing abroad and may have some legal effects
in Poland
Law Applicable
to the Form of Marriage
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The scope of the law applicable pursuant to Article 49 PIL 2011:
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the requirement of public announcement of the intended marriage (the socalled „banns”)
the obligation of the persons betrothed to be present at the certain place at
the same time (or, similarly, the possibility to enter into the marriage in
absentia) => the question of the empowerment to represent a person
entering into marriage
Person, organ or body competent to solemnize the marriage
Participation of witnesses
Way in which the parties’ declarations of entering into marriage have to be
taken
Registration of the marriage
What is not the form, should be considered as the substance
–> Article 48 PIL applies
Connecting Factors – The Form
Example
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Maria T., a Greek national, met during her studies in Germany
Georgios K., an ethnic Greek who was born and lived in this
country for his whole life and hence he has nationality of both
Germany and Greece. The couple enters into the marriage
before the orthodox priest in Hamburg. German law requires the
marriage to be concluded basically in the secular form (before
the registrar). Which law shall govern the formal validity of
marriage according to Polish Private Int’l Law?
Case - Comments
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Lex loci matrimonii principle (law of the country where the
ceremony of marriage takes place) comes first pursuant to Article
49(1) PIL 2011
Outside Poland (Article 49(2) PIL 2011), the subsidiary connecting
factor of the paragraph 2 could be invoked
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Parties have to possess the same nationality, domicile (ordinary residence), or
habitual residence
Should any of the parties have dual or multiple nationality, then the general rules
of the PIL shall apply (see Article 2 PIL 2011)
The woman is Greek (only) but the man is a dual national closely
connected to Germany – yet we recognize him to be a Greek
irrespective of the expatriation
Consular Marriages
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Marriages entered into abroad between nationals of a country whose consul
(consular officer) receives the marital vows
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The form of marriage is governed by the law of the State sending the
consul
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E.g. two Swedish nationals in Warsaw before the Swedish consul; two French
nationals in Kraków before the French consul, etc.
The receiving state simply accepts the consul's competence as the part of his or
her mission
The marriage takes place in Poland but it is not registered by the registrar in
whose district the consul was acting
Marriage certificate issued by the sending State’s authority
Validity prerequisites
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Law of the sending state recognizes such a form abroad (in Poland Article 1(6) of
the Family and Guardianship Code)
Law of the receiving state does not oppose it
At least one –and usually two– of spouses has the nationality of the sending
state
No-one of spouses should be the national of a receiving state
Entering into Marriage in Poland
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Any person intending to marry is obliged to provide
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A foreigner intending to marry submits a document stating that he/she may
conclude marriage in accordance with the applicable law, unless it is
governed by Polish law (see Article 79 of the Vital Records Act 2014)
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evidence of identity
written statement of assurance that he or she is not aware of the existence of
circumstances excluding the marriage;
marriage permit, if required (e.g. the court permission issued at the request of
the 16-year-old women - not to confuse with the marriage license)
foreign vital records, if not registered in Poland
If obtaining such a document encounters obstacles that are difficult to overcome,
the court in non-litigious proceedings at the request of a foreigner may release
him or her from submitting it.
In proceedings for the exempting the foreigner from submitting the document,
the court determines according to the applicable law whether a person may
enter into marriage
Form – marriage may be either civil or religious (which does not
alter its effects and character of marriage)
Subsequent Validation of Marriages
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Case before German Tribunal of the Empire - Reichsgericht (RG),
16 May 1931, RGZ 132, 416
In 1918, a man of the Austrian nationality belonging to the Roman
Catholic Church had married a Russian Jew. According to the Austrian law
of the time, interreligious couples could not enter into a valid union
(impedimentum disparitatis cultus). A couple left for the city of Trieste and
both acquired the Italian nationality. Finally, the spouses moved to
Germany, where the divorce application was lodged by the husband
Is the wedlock null and void ab initio according to the husband's
personal law at the time of the marriage conclusion, or should it
preserve its validity according to both spouses' new personal law?
Concept
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Matrimonium claudicans ('limping marriage') – legal divergences regarding
the prerequisites of marriage make the couple union existing in one country
and void -or voidable- in the other one
Subsequent validation – a new legal system applicable to the effects of
marriage allows the court to preserve its validity, whereas the normally
applicable law does not
Arguments for the subsequent validation
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Favor of the interested persons
Stability with regard to family relations
Against such a view
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Lack of legal basis (see the Decree of 3 Feb. 1947 on the recognition of validity
of certain marriages and divorces of Polish citizens)
Limited applicability of such a doctrine (only the last spouses' common law of
nationality or domicile taken into consideration)
Divorce and marriage nullity
recognition
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Marriage license sometimes requires courts and/or registars to examine
incidental questions (e.g. of whether the previous marriage still exists)
Recognition of foreign decrees concerning marriage
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Between EU Member States – see Brussels IIbis Regulation (No. 2201/2003) –
Article 21 ff (foreign divorce and annulment recognized ex lege)
Divorce/ Legal separation as between Poland and several non-EU countries (e.g.
Australia, China, Egypt) – see the 1970 Hague Convention on the recognition of
divorces and Legal Separations (binding since 24/06/1996)
Under the lex fori processualis
Recognition of foreign private divorces (repudiation)
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Lack of legal basis (see the Decree of 3 Feb. 1947 on the recognition of validity
of certain marriages and divorces of Polish citizens)
Limited applicability of such a doctrine (only the last spouses' common law of
nationality or domicile taken into consideration)
Thanks for your attention!