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Stosowanie deliktowych łączników lokalnych do zdarzeń mających miejsce na pokładzie statku morskiego lub powietrznego w unijnym prawie prywatnym międzynarodowym

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Dyrda Ł.
Problemy Prawa Prywatnego Międzynarodowego
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2019
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vol. 24
109-139
EN
The article is aimed at determining the relevance of the flag state (regarding vessels) and the country of registration (regarding aircrafts) principles for the purpose of the application of territorial connecting factors (the place of the event giving rise to damage (place of acting) and the place where the damage occurred (place of damage)) employed by article 7(2) of the Regulation No 1215/2012 (Brussels I bis Regulation) providing a special jurisdiction rule in matters relating to tort, delict or quasi-delict and by article 4(1) of the Regulation No 864/2007 (Rome II Regulation) specifying the law applicable to a non-contractual obligation arising out of a tort or delict. The flag state and the country of registration principles could be taken into account when circumstances constituting the event giving rise to damage or the damage itself are situated on board of a vessel navigating in or an aircraft flying through the areas outside the sovereignty of any state (in particular the High Seas). The reference to the flag state or the country of registration instead of the sovereignty in order to identify the member state whose courts have jurisdiction pursuant to article 7(2) of the Brussels I bis Regulation or the statewhose law is applicable according to article 4(1) of the Rome II Regulation may also be possible in cases when the determination of the place where the event giving rise to damage occurred or where the damage occurred is difficult or even when the competent jurisdiction and the applicable law identified based on the sovereignty over the area where the vessel navigated or the aircraft flew at the moment when the event giving rise to damage occurred or damage occurred does not materialise the closest connection principle.
2

Immunitet jurysdykcyjny państwa Wyrok Międzynarodowego Trybunału Sprawiedliwości z dnia 3 lutego 2012 r. w sprawie Niemcy przeciwko Włochom – Omówienie

100%
Dyrda Ł.
Kwartalnik Prawa Prywatnego
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2012
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vol. 21
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issue 4
1017-1033
EN
On 3 February 2012, the International Court of Justice delivered a judgment in the case concerning immunities of the state between the Federal Republic of Germany and the Italian Republic. The Hellenic Republic was the state permitted to intervene in the case. The judgment not only settles the dispute between two states but also, what is of greatest importance, determines the content of the customary international law governing immunities of the state. This question is closely connected with the sovereignty of the state. The International Court of Justice finally decided whether Germany is entitled to immunity before the courts of other states in proceedings designed to establish its liability for loss or damage caused by the German Reich during the World War II. The Court separately analysed jurisdictional immunity and immunity from enforcement. The Court concluded that the decision of the Italian courts to deny immunity to Germany cannot be justified on the basis of the territorial tort principle. The Court has also rejected the second Italian argument that the subject-matter and circumstances of claims in Italian courts justified the denial of immunity. This argument was based on three strands: the gravity of the violations, the relationship between jus cogens and the rule of state immunity and the ‘last resort’ argument. They were discussed one by one and, in the end, taken together. The Court held that Germany was entitled to jurisdictional immunity under customary international law and thus Italy breached its obligations owed to Germany. The Court also found that taking the measures of constraint against property belonging to Germany constituted a violation of immunity from enforcement to which Germany was entitled under international law. Finally, the Court held that decisions of the Italian courts declaring enforceable in Italy judgments rendered by Greek courts against Germany in proceedings arising out of the Distomo massacre constituted a violation by Italy of its obligation to respect the jurisdictional immunity of Germany. The judgment comprehensively discusses the current state of international law – both customary and conventional. The Court found that the distinction of acta jure imperii and acta jure gestionis is still to some extent relevant and took a rather conservative position. This may be criticized from the perspective of the protection of human rights.
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Konwencyjne prawo jednolite a normy kolizyjne

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Dyrda Ł.
Kwartalnik Prawa Prywatnego
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2013
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vol. 22
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issue 2
483-512
EN
In a typical situation civil-law relationships are governed by national substantive laws which are designated by national conflict-of-laws rules. This results in the multiplicity of rules both as regards substantive law and the conflict of laws. The phenomenon was observed quite early and some initiatives were undertaken to unify conflict-of-laws rules at the end of the 19th century. However, unification in the modern meaning understood as the unification of substantive laws by uniform laws started to develop in the 1920s, when the 1924 Bills of Lading Convention was signed. Although some conventions unifying substantive laws have been ratified by a significant number of states and their provisions have been widely discussed, little attention was paid to the mostly theoretical, but having practical implications, issue of the relationship between uniform law and conflict-of-laws rules. The article, inspired by the monograph of Valentine Espinassous entitled L’Uniformisation du droit substantiel et le conflit de lois, published in 2010, discusses the problem searching for the most appropriate from the private international law perspective solution. Several different types of uniform laws can be identified depending on whether they apply both to internal and to international situations and whether there are further conditions for the application of a given uniform law. Other classifications were proposed as well. However, there can be no doubt that uniform laws form a part of national legal orders despite the fact that conventions providing them are deeply rooted in the international legal order. This observation is the starting point of the analysis that leads to the conclusion that uniform laws eliminate conflicts of national legal orders neither in the formal nor substantial meaning and, therefore, private international law should intervene. The desirable and reasonable method is to apply uniform laws as a part of the lex fori. There are a few ways to attain this objective. The article discusses these possibilities, including that advocated by V. Espinassous and, having rejected them, suggests to make a reference to the unilateral conflict-of-laws rule, the same which, in accordance with the prevailing opinion of the Polish legal doctrine, is the private international law basis for the application of overriding mandatory provisions. The operation of this proposal is shown on the example of the 1980 Vienna Convention on Contracts for the International Sale of Goods.
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Kolizyjna problematyka odpowiedzialności przewoźnika lotniczego za przewóz pasażerów i ich bagażu

100%
Dyrda Ł.
Kwartalnik Prawa Prywatnego
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2014
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vol. 23
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issue 2
337-392
EN
The legal framework of the international carriage of passengers and their baggage by air consists of international conventions providing uniform laws, the law of the European Union and the national legislations of the member states of the European Union. The European Union is a party to the Montreal Convention of 1999, while its member states are bound by both the Montreal Convention and Warsaw Convention of 1929. They are intended for the unification of certain rules for international carriage by air. The member states of the European Union also apply Regulation (EC) No 2027/97 as amended by Regulation No 889/2002. The multiplicity of the sources of law has a significant impact on the designation of the law applicable to the liability of air carriers for passengers and their baggage. The conflict of laws is based on the assumption that a particular dispute may be settled according to the lex fori or foreign law. In each legal system there are conflict-of-law rules, which through connecting factors designate the law applicable to cases falling within their scope of application. National legislatures enjoy a wide margin of discretion to choose a relevant connecting factor for each conflict-of-law rule. As regards the international carriage of passengers and goods by land (road and rail), sea or air, states have a great interest in settling disputes between passengers and carriers. Several connecting factors may be used to determine the law applicable to the liability of air carriers and there are strong reasons for each of them. Moreover, the effective enforcement of judgments rendered against air carriers often requires the involvement of several jurisdictions. It is thus clear that the classic tools of private international law do not produce satisfactory results. The uniform law appears to be a solution for the problems relating to the international carriage of passengers and their baggage. However, at the same time, it raises serious questions that should be discussed. In respect of international carriage by air a crucial role has been played by the Warsaw Convention, laying down a uniform regime implemented by the vast majority of states. It has subsequently been amended by the Hague protocol of 1955, the Guadalajara Convention of 1961, the Guatemala Protocol of 1971 (not in force) and the Montreal Protocols of 1975 (the third of them is not in force). The Warsaw Convention has been replaced by the Montreal Convention, ratified by more than 100 states. The article discusses the issue of the air carrier’s liability in respect of the carriage of passengers and their baggage by air in the Polish legal system (and the legal systems of the member states of the European Union) from the perspective of the conflict of laws. The analysis focuses on the relationship between the conflict-of-law rules of the Rome I and Rome II Regulations, Regulation No 2027/97, and the Montreal and Warsaw Conventions. It is argued that the uniform laws established by the Montreal Convention (including the reference made in Regulation No 2027/97) and the Warsaw Convention are applied by the member states of the European Union (and other contracting parties) as part of their legal systems by means of unilateral conflict-of-laws rules based on and interpreted from the rules on the scope of application of these uniform laws. The uniform law can also be applied as foreign law, when the conflict-of-laws rules of the forum (a non-member state of the European Union or not a contracting party) designate the law of the member state of the European Union (or a contracting party) as applicable and provided that the dispute falls within the scope of the uniform law in force in that state. Due to the multiplicity of the sources of law relating to the liability of air carriers, it is necessary to discuss the conflict of laws, the conflict of rules (both substantive and conflict-of-law) within an individual legal system and the conflict of the obligations of states
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