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Part 7

International Private Law
Part 7
We talked recently about the law applicable to non-contractual
obligations, that are torts (any private or civil wrong /through act or
omission/ other than breach of contract for which the wronged person
may claim damages against wrongdoer) and their specific forms:
- product liability,
- acts of unfair competition, if somebody introduces to a market a
product under brand name of somebody else pretending to be
entitled to it,
- acts restricting the competition (concerted practices aimed against
other competitors),
- environmental damages,
- infringements of intellectual property rights, plagiarism
- unjust enrichment,
- culpa in contrahendo.
We focused in particular on the s.c. multilevel torts where the
wrongdoing acts on one side and their detrimental effects occur in
different jurisdictions. Such situation may occur where a water
pollution produced in one state gets through stream into a neighbor
We have focused on the EU Regulation no 864/2007 (Rome II) which
for the tort/delict refrained from the traditional connecting factor lex
loci delicti commissi indicating the law where the event constituting
the source of the obligation occurred i.e. where the wrongdoing act
was committed in favor of / and introduced the connecting factor lex
loci damni (the law of the country in which the damage occurs
irrespective of the country in which the event giving rise to the
damage occurred and irrespective of the coutry or countries in which
the indirect consequences of that event occur). The law of the damage
instead of the law of the wrongdoing act.
Another connecting factor which appears in the area of the law of
torts namely in the product liability (claims for damage caused by
defective products) is lex protectionis i.e. the law of the state where
the person sustaining the damage has its habitual residence (Art. 5).
That connecting factor makes privilege for the damaged person, he or
she will base his/her damage claims on the law of his/her residence
Just for good order’s sake let us shortly summarize the remaining
solutions of the EU Regulation with respect to other forms of torts. As
far as acts of unfair competition and acts restricting the competition
are concerned they are governed by the law of the market was or was
likely to be affected.
Acts of unfair competition (e.g. introducing imitated products onto the
market) are governed by the law of the country where competitive
relations or the collective interest are or are likely to be affected (Art.
6). It reflects the main connecting factor for torts i.e. lex loci damni.
The same refers to acts restricting the competition (e.g. concerted
practices of certain competitors aimed against other competitors in
the same market) are governed by the law of the country where the
market is, or is likely to be, affected (Art. 6 sec. 3a). When the market
is, or is likely to be, affected in more than one country, the person
seeking compensation for damage who sued in the court of the
domicile of the defendant, may instead choose to base his or her
claim on the law of the court seized, provided that the market in
Member State is amongst those directly or substantially affected by
the restriction of competition out of which the non-contractual
obligation on which the claim is based arises.
As far as non-contractual obligations arising out of environmental
damage or damage sustained by person or property as a result of
such damage, constituting the manifest example of a potential
multilevel tort, shall be the law determined pursuant to Art. 4(1) unless
the person seeking compensation chooses to base his or her claim on
the law of the country in which the event giving rise to the damage
occurred (Art. 7). Here we come back to the main connecting factor of
lex loci damni while in some circumstances lex loci delicti prevails.
If a non-contractual obligation arising out of unjust enrichment,
including payment of amounts wrongly received, concerns a
relationship existing between the parties such as one arising out of
contract or a tort/delict that is closely connected with that unjust
enrichment, it shall be governed by the law that governs that
relationship (Art. 10).
Finally the law applicable to a non contractual obligation arising out of
dealings prior to the conclusion of a contract, regardless of whether
the contract was actually concluded or not (culpa in contrahendo),
shall be the law that applies to the contract or that would have been
applicable to it had it been entered into (Art. 12 sec. 1).
10. The EU Regulation is flexible insofar that the law applicable
established following the above rules should in certain circumstances
be replaced by another law, namely 1) if the person claimed to be
liable and the person sustaining damage both have their habitual
residence in the same country at the time when the damage occurs,
the law of that country shall apply. Moreover: 2) where it is clear from
all the circumstances of the case that the tort/delict is manifestly more
closely connected with a country other that indicated in the
aforementioned paragraphs the law of that country shall apply. A
manifestly closer connection which prevails with respect to the
establishing of the law applicable might be based in particular on
preexisting relationship between the parties such as a contract that is
closely connected with the tort/delict in question.
11. Although the specifics of non-contractual obligations is that the legal
link between the parties i.e. the wrongdoer and the person damaged
starts to exist at the moment when the damage occurs, the parties
autonomy in establishing the law applicable – as it was natural in the
area of contracts – may also take place. The EU Regulation allows for
the choice of law in Art. 14 which provides for as follows: Freedom of
choice: The parties may agree to submit non-contractual obligation to
the law of their choice 1) by an agreement entered into after the event
giving rise to the damage occurred or 2) where all the parties are
pursuing a commercial activity also by an agreement freely negotiated
before the event giving rise to the damage occurred (e.g. business
companies or other business entities remaining in business relations
enter into an arrangement that all their relations including torts and
claims arising out thereof will be governed by the law of state X). The
choice shall be expressed or demonstrated with reasonable certainty
by the circumstances of the case and not prejudice the rights of third
12. Restrictions of the choice: Where all elements relevant to the situation
at the time of when the event giving rise to the damage occurs are
located in a country other than the country whose law has been
chosen the choice of the parties shall not prejudice the application of
the law of that other country which cannot be derogated from by
13. The law applicable to claims arising out from acts of unfair
competition, acts restricting free competition and infringements of
intellectual property rights may not be derogated from by an
agreement on choice of law.
14. Now we finish findings or ways of establishing laws applicable to
contracts and non-contractual obligations. We proceed to jurisdiction
matters. The term “jurisdiction” means the authority to interpret and
apply the law. Therefore the jurisdiction is the domain of the courts
and as such constitutes the issue of the procedural law. The question
“who has jurisdiction” can be expressed otherwise by the question
“which court is competent to hear and determine the case” or – more
precisely – the court of which country is competent thereto. That
question has to be differentiated from the law applicability although
both issues remain in close relation. Actually the jurisdiction issue
must be fixed first and – after having been determined – we can solve
the problem of the law applicable. The court, which has jurisdiction,
based on its own conflict of law rules (international private law)
establishes the law applicable to the case in question.
15. Each and every country determines itself the jurisdiction of their state
courts and also special courts, the jurisdiction of which depends on
the will of the parties involved. I mean the s.c. arbitration tribunals the
jurisdiction of which is based on the arbitration clause made by the
parties of the contract (of the dispute, if it arose). The general
principle, acknowledged (accepted) by all legal systems, including
Polish law, is that the courts of the respective state have jurisdiction
insofar the defendant has its domicile (seat) in that country.
16. The aforementioned principle has been also accepted by the Council
Regulation (EC) No. 44/2001 of December 22, 2000 on jurisdiction and
the recognition and enforcement of judgements in civil and
commercial matters, which in Art. 2 provides for that persons
domiciled in Member States shall, whatever their nationality, be sued
in the courts of that Member State. If the residents shall be sued in the
courts of their residence states then those courts have jurisdiction
over them as defendants and consequently over disputes, in which
they were sued.