Applicable law is a specific concept of private international law and refers to the national law that governs a given question of law in an international context. A court hearing an action does not necessarily apply its national law to settle the dispute. Where a legal relationship between private individuals has an international dimension (for example where they are of different nationalities or do not live in the same country), the laws of several different countries might be applied. The law that is actually applicable is determined by the rules of conflict of laws. The Convention on the law applicable to contractual obligations, signed in Rome in 1980 under the auspices of the European Economic Community, unifies the Member States' conflict rules in this field.
An authentic instrument is a document recording a legal act or fact whose authenticity is certified by a public authority. Certain authentic instruments are enforceable. An example is the deed for the sale of real property, prepared by a notary. Authentic instruments that are enforceable in a Member State may be enforced in another Member State in accordance with a simplified procedure provided for by the Brussels I Regulation.
The expression Brussels I is often used to refer to Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This instrument governs the conferment of international jurisdiction as between the Member States of the European Union and the conditions and procedures for recognition and enforcement of judgments given in the Member States, authentic instruments and court settlements. It replaced the Brussels I Convention of 27 September 1968 as regards all Member States except Denmark.
The expression Brussels II is often used to refer to Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for the children of both spouses. The Regulation lays down rules governing international jurisdiction and the recognition and enforcement of judgments in cases concerning divorce, separation and annulment of marriage and judgments concerning parental responsibility for the children of both spouses given in connection with them. It replaced the Brussels II Convention of 28 May 1998 as regards all Member States except Denmark.
Case-law is used internationally to refer to rules of law flowing from a set of convergent decisions of the courts. The case-law of the Court of Justice of the European Communities is particularly rich in decisions on the interpretation of the Community treaties, directives and regulations. It is a source of Community law.
A Communication is a policy document with no mandatory authority. The Commission takes the initiative of publishing a Communication when it wishes to set out its own thinking on a topical issue. A Communication has no legal effect.
In Community law, a Recommendation is a legal instrument that encourages those to whom it is addressed to act in a particular way without being binding on them. A recommendation enables the Commission (or the Council) to establish non-binding rules for the Member States or, in certain cases, Union citizens.
Community law means the set of rules adopted by the European Community. Community law consists mainly of the Treaties, the instruments adopted by the institutions under the Treaties, such as Regulations and Directives. The case-law of the Court of Justice is also one of the sources of Community law. Community law is distinguished from public international law in a number of respects (see public international law).
See applicable law.
Where two people conclude a contract, they generally enter into a two-way obligation - one undertakes to provide the other with goods or a service and the other undertakes to pay the price. Each of the parties to the contract is also bound by an obligation towards the other to compensate him if the contract is not performed properly or not performed at all.
Conventions can also be known as treaties or agreements and are the most widely-used instruments of public international law. A convention is an agreement between several States and/or international organisations laying down the law in relations between them and between their respective nationals. Conventions can be bilateral, i.e. concluded between two States. This used to be the usual situation before international organisations were set up and provided a forum for concluding multilateral conventions, concluded between more than two States. Many multilateral conventions have been negotiated under the auspices of international organisations such as the Hague Conference on Private International Law and the Council of Europe. The Brussels I Convention was concluded between the Member States of the European Economic Community in 1968.
The European Community regularly concludes conventions with one or more non-member countries on behalf of the Member States. Once a convention has been signed by the representatives of the governments concerned, it must be ratified or approved by the relevant national authorities, which usually means the national parliaments. In certain States conventions that have been ratified have direct effects in the domestic legal order. In other States, conventions that have been ratified have effect only if they have been transposed into the national legal order, in the form of a statute for example.
Conventions are instruments of public international law and are distinguished from instruments of Community law in the following respects:
In Community law, a decision is a legislative instrument that is binding in its entirety on all those to whom it is addressed. A decision may be adopted under the EC Treaty either by the European Parliament and the Council or by the Council or by the Commission. Decisions are rarely used in the field of judicial cooperation in civil matters. The European Judicial Network in Civil Matters was established by a Council Decision.
In Community law a directive is a legislative instrument that is binding on the Member States to whom it is addressed as regards the result to be attained but leaves them free to determine the form and methods. Directives may be adopted under the EC Treaty either by the European Parliament and the Council or by the Council or by the Commission. The Community institutions use Regulations more often than Directives in judicial cooperation in civil matters. Once adopted, Community Directives still have to be transposed by each of the Member States, that is to say they must be implemented by national law.
Enforceability is a concept of civil procedure. Judgments are enforceable in that they can be enforced with the aid, if necessary, of the forces of law and order. Judgments and authentic instruments, that are certified enforceable, are the main documents that are enforceable. Enforceability is confined to the State of the court which gave the judgment. To be enforceable abroad, the judgment must be declared enforceable (by what is known in some countries as the exequatur procedure) or in the UK and in Ireland be registered.
The enforcement of a judgment consists of securing compliance with it, if necessary by means of coercion as allowed by the law, including the intervention of the forces of law and order. If you win your case in the courts but the other side does not spontaneously comply with the court's order, you can go to the police or a bailiff, depending on the situation, to have the judgment carried out. Enforcement concerns court judgments, arbitral awards, authentic instruments and court settlements that are certified enforceable. It can take the form of the attachment of the debtor's assets or the eviction of a tenant, for instance. Basically a judgment can be enforced only in the State where it was given. Enforcement abroad requires the exequatur or registration procedure.
Exequatur, is a concept specific to the private international law and refers to the decision by a court authorising the enforcement in that country of a judgment, arbitral award, authentic instruments or court settlement given abroad. Abolition of the exequatur procedure between Member States for all judgments in civil and commercial matters is the ultimate objective of the mutual recognition programme adopted by the Commission and the Council in December 2000.
The forum is a specific concept of private international law. It means the courts of a given State in which an action is brought. The concept of forum underlies the concepts of lex fori and forum-shopping.
Forum-shopping is a specific concept of private international law. A person who takes the initiative of bringing a court action may be tempted to choose his court on the basis of the law applied there. A person starting an action might be tempted to choose a forum not because it is the most appropriate forum but because the conflict of laws rules that it applies will prompt the application of the law that he or she prefers.
A Green Paper is a consultation document published by the Commission on a specific topic to prompt reactions from interested circles on a variety of questions. The Commission's aim in publishing a Green Paper is to better determine the future orientations of its policy on the question.
International jurisdiction is a specific concept of private international law. It refers to the fact that the courts of a given country will be the most appropriate to hear and determine a case that has an international dimension. A dispute has an international dimension where, for example, the parties have different nationalities or are not resident in the same country. In such a situation the courts of several countries might have jurisdiction in the case, and we have what is known as a conflict of jurisdiction. The rules of international jurisdiction lay down criteria for determining the country whose courts will have jurisdiction in the case.
The lex causae is a specific concept of private international law and refers to the law governing the substance of the case, designated by the rules of conflict of laws. See applicable law.
The lex fori is a specific concept of private international law and refers to the law of the court in which the action is brought. Where an action is brought in a court and has an international dimension, the court must consider the law applicable to the case. In certain circumstances, the lex fori will apply. Traditionally the lex fori governs questions of procedure, regardless of the lex causae.
The lex loci delicti is a specific concept of private international law and refers to the law of the country where, in terms of non-contractual obligations, the harmful event occurred.
There is a non-contractual obligation where a person who is responsible for loss sustained by another person is required to compensate the victim, in cases not linked to the performance of a contract, such as traffic accidents, environmental damage or defamation.
Private international law, as used in its broad sense, means the set of legal rules governing international relations between private individuals. The expression private international law does not have the same meaning in all the Member States. In German and Portuguese law, for example, it refers solely to the rules on conflict of laws (see applicable law), whereas in other systems it includes the rules on international jurisdiction and the recognition and enforcement of foreign judgments. All these rules relating to the applicable law, international jurisdiction and the recognition and enforcement of foreign judgments provide solutions to the difficulties that can flow from the fact that a single case can involve several separate legal systems. An example might be the case of a married couple of mixed nationality who are thinking of divorcing: which court will have jurisdiction to order the divorce, and what law will it apply? Another example would be where an accident occurs in a Member State and prompts environmental pollution that causes loss in several other Member States. Which State's courts should the victims go to? And which law will the courts apply? The sources of the rules of private international law are the legislation, case-law and academic writings in each of the States. Despite the name, private international law is a creature of national law alone. Certain of these national rules may have been standardised in international conventions and possibly also in Community instruments. Standardisation makes it possible to avoid situations where the courts of two States claim jurisdiction under their national rules of private international law and give conflicting judgments in the same case.
Public international law means the set of legal rules governing international relations between public bodies such as States and international organisations. Conventions and uniform laws are common instruments of public international law.
Recognition is a specific concept of private international law. Recognising a judgment given in one Member State in another means agreeing that it may have effect there. Judgments basically have effect only in the State where they are given. Recognition in another State is possible only if the law of the other State so allows or if an international convention or a Community instrument provides for it. Under the Brussels II Regulation, for instance, which lays down the conditions in which judgments in matrimonial matters can be recognised, a divorce decision in a Member State may be used to modify the marriage registers in another Member State.
In Community law, a Regulation is an instrument of general scope that is binding in its entirety and directly applicable in all Member States. Regulations can be adopted under the EC Treaty by the European Parliament and the Council or by the Council or by the Commission. Regulations are often used in the field of judicial cooperation in civil matters. They are directly applicable, so they require no transposal into the Member States' domestic law and directly confer rights or impose obligations.
Uniform laws are instruments prepared jointly by several States and/or international organisations to help States wishing to reform and modernise their legislation. International organisations such as UNCITRAL and UNIDROIT (see International law homepage) draft uniform laws.