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PL
Criminally relevant conduct often falls under several criminal precepts, regulating as many criminal notions as possible, and it is necessary to decide whether all, some or only one of them could be applicable. This phenomenon, termed ‘conflict’, occurs when a subject’s actions with criminal relevance are, wholly or partially, subsumed under different criminal precepts. To definitively classify the punishable act, it is then necessary to take a further step, which can be considered conclusive, and determine the precept or precepts applicable to the act. Hence, this paper analyses the meaning, content, and application of the conflict of laws and conflict of rules.
EN
In the Western culture there is a widespread belief that marriage should be contracted only by freely expressed will. Hence, marriages concluded at an early age are considered unacceptable. Entering into marriage by children has a negative impact on their education, physical and mental health, as well as their socioeconomic position. For this reason, such practices are incompatible with human rights. Therefore, European countries are trying to counteract them, which results in taking specific legislative actions. The intensification of these activities is particularly evident in the last decade, which is mainly caused by the increased migration to Europe from countries belonging to other cultural circles. Child marriages, being a phenomenon strongly embedded in culture, have become one of the areas where there are frictions between the majority, which in principle determines the shape of legal regulations, and minorities who, on the one hand, want to live in European countries, but also want to preserve the traditions that are cultivated in their countries of origin. The changes in law considering child marriages are undertaken in realm of substantive law as well as conflict of laws rules. In the second case, the states introduce specific public policy clauses referring to child marriages. The paper aims at describing and evaluating those changes in law, especially from the point of view of private international law.
EN
The legal effects of the use of artificial intelligence algorithms need to be assessed not only at the level of national law, but also at the level of private international law. The initial point of assessment is to determine the law applicable to legal events related to artificial intelligence. The conflict of laws analysis of artificial intelligence also allows to expand the knowledge about traditional private international law institutions, such as ordre public clause. The paper does not pretend to fully explain the issue of conflict of laws of artificial intelligence. Its aim is to make a preliminary verification of the conflict-of-laws methods based of existing instruments. The study aims to start an academic discussion on artificial intelligence in the context of the conflicts of law. It is important as legal events related to artificial intelligence algorithms are characterized by considerable complexity.
EN
Irrespectively of the competition itself, economy and finances have become more and more important in sport due to great investments involved in this sphere of economic and social life. As a consequence, worldwide and European sport organizations and federations have gained even greater importance. Bearing in mind scale, territorial scope, finances engaged and popularity of certain kinds of sport, the most important federations are FIFA, UEFA and the International Olympic Committee. One of the most interesting aspects of their activity and significance are regulations issued by them. These regulations govern sport competition (worldwide and domestic), national sport federations and clubs, as well as trainers, referees, competitors, etc. What is particularly interesting are the by-laws and statutes setting rules of competition and responsibility of entities involved in certain disciplines of sport. Having this in mind, the issue which raises particular doubts is the relation of the above mentioned regulations and statutes to laws made by the state as well as its binding force within state territory. It is significant that regulations and by-laws govern national sport federations, but the latter not only have been established but are governed by national law. There are several important questions concerning regulations of sport federations and their relations to national laws. What is the significance and binding force of the regulations in a particular state? Polish national sport federations being governed by the above mentioned regulations must also comply with state law. This in turn can result in many conflicts between these two kinds of regulations. Moreover, this fact implies that regulations issued by international sport federations to some extent have an influence on state law. The main goal of this article is to describe the relation between the two kinds of regulations mentioned aboved - regulations of sport federations and national laws - and aims to draw several conclusions and recommendations in respect to a potential conflict between them. FIFA and UEFA are the most important sport federations on the global and European levels. This is the reason why this article is based on regulations issued by these organizations. Nevertheless, conclusions are also applicable to other sport federations.
EN
Polish administrative courts were in 2018 requested to register in Polish birth records the child’s origin from “same-sex parents” (de facto – homosexual couples). The author discusses the national legal provisions. In the matters of civil status in question there is no harmonization of law at the international level, and the European Union has no competence in the field of substantive personal and family law. Such issues and – being their reflexes – the registration of civil status (filiation or marriage) are subject to the internal legislation of each state. Legal systems differ manifestly in the world. The author emphasizes that there is no possibility of transferring to the domestic register of civil status (birth records) a foreign document incompatible with the fundamental principles of forum’s law, which is justified in particular by the need to protect the effectiveness of the principles of the Polish ordre public, which are declared in the Constitution (Art. 18). They include i.a. the understanding of the principle of filiation or marital status, and the registration system should be compatible with the legal fundaments of the state. The proposed solution does not mean, however, that it is not possible to settle a detailed administrative case residing abroad, e.g. to obtain an identity card by the child living abroad. For the purpose of such separate administrative proceedings, a foreign document or a part of it may be treated as confirmation of the status of parents (i.e. a man and a woman who gave birth to a child) being Polish citizens.
EN
Polish courts more and more often face considerable difficulties related to dissolving marriages on the basis of foreign law. In these cases it is necessary to jointly apply rules of private international law (of national as well as international origin), foreign divorce law and procedural rules of the forum. In particular, it is problematic whether and how Polish courts should rule on matrimonial fault, if foreign law governs the divorce. To answer this question the legal character of article 57 of the Polish Family and Guardianship Code shall by analysed. This provision states that the court, in its ruling on divorce, shall also determine, whether and which spouse is at fault for the breakdown of marriage. In this study it is argued that Polish and foreign law provisions concerning determination of matrimonial fault are primarily of material character and should be applied as the integral part of the law governing divorce. Article 57 of the Polish Family and Guardianship Code does not constitute an overriding mandatory provision of the forum, which could govern dissolution of marriage regardless of the law under which it falls. Neither it is a procedural regulation, which should be applied by the Polish courts as legis fori processualis. As a result, if the applicable law does not provide for ruling on fault for the breakdown of marriage, the competent court shall not deal with this issue.
EN
Conclusion of marriage by foreigners in Poland and assessing their right to marry may be a source of many problems. The procedure in such cases comes to the realization of certain complementary rules used to indicate the applicable law for this possibility (substantial impediments to marriage) and the rules for the granting of marriage, marriage registration and issuing marriage acts, according to marital status legislation. The most recent reform of the latter will not eliminate these problems.
EN
The article discusses issues that are fundamental to shaping the future of private international law: the phenomenon of migration and the so-called multicentricity of creation and application of law. The subject matter of the discussion is the evolution of Savigny’s classical paradigm of private international law as an “arbitrator” between the legal systems of nation states. Modern migrations are characterized by multidirectional population flows and decreasing stability of links between a person and a specific territory; in turn, multicentricity entails the obligation to constantly reconcile various legal rules coming from various law-making centres. The author does not question the advantages of Karl Friedrich von Savigny’s concept, but considers it necessary to reconcile it with the increasingly complicated and eclectic structure of private international law in the first half of the 21st century. The concept of the so-called sovereignty of an individual – an increased importance of individual values at the expense of collective, nation-wide or general public values – causes significant confusion about the concept of “conflict-of-law justice” based on the idea of a “spatially better” law, that is, the closest connection between law and a particular case. Such a specific concept, when confronted with increasingly complex legal structures of today’s world, is experiencing a significant crisis. The term “law of conflict” ceases to be reserved for private international law only, just as conflicts of laws cease to arise only at cross-border level. The solution might consist in turning back to the doctrine of natural law and thus departing from a strictly positivist vision of conflict-law as a finite set of simple rules used to attribute relations to relevant national law systems. Although international private law will certainly not forget about von Savigny, we can assume that it no longer belongs to his legacy.
PL
Law applicable to the protection of the rights of personality rights is regulated by a method of alternative indication with two equivalent connecting factors. The legislator has not specify who and how should determine which one will apply. Both the linguistic formulation and functional arguments support the conclusion that it is the right of the claimant. In case of lack of such indication the court should apply the law which is most closely connected to the situation.
EN
The question of which law should govern the third-party effects of assignments of claims was considered during the preparation of the Rome I Regulation. The European Commission’s proposal for the Rome I Regulation admitted the law of the assignor’s habitual residence as the law that should apply to the proprietary effects of assignments of claims. Finally, EU Regulation on the law applicable to contractual obligations did not include the issue of the third-party effects of the assignment. However, Article 27(2) of the Rome I Regulation required the European Commission to present a report on the question of the effectiveness of assignments of claims against third parties accompanied, if appropriate, by a proposal to amend the Rome I Regulation. Proposal for a Regulation on the law applicable to the third-party effects of assignments of claims (COM(2018) 96 final) is a response to this request. This paper analyses current draft of the new EU Regulation, the rules on determination of the third-party effects of assignments of claims (law of the assignor’s habitual residence and law of the assigned claim) and "super conflict rules" in specific cases. The author argues that the law of the assignor’s habitual residence remains the appropriate conflict rule for proprietary effects of assignments of claims.
EN
Following the footsteps of Józef Mélèze Modrzejewski and reassessing his law-custom theory, the essay explores the principles of law-application under Roman law. Passages from Ps.-Menander’s Epideictic Treatises and Gregory the Miracle-Worker’s Eulogy of Origen are confronted with the selected papyrological evidence of apparent ‘conflict of laws’ faced by the Roman jurisdiction: the petition of Dionysia (P. Oxy. II 237), and a text concerning the testamentary freedom of the Egyptians (P. Oxy. XLII 3015), and finally with a fragment of a juridical work attributed to Volusius Maecianus (D. XIV 2.9 pr.). In conclusions, a new take of the problem is presented. I suggest the principle ordering the choice of competent law be lex posterior derogat legi priori. Thus, after the Roman conquest the old norms remained in force until expressively abrogated by a new Roman precept: be it in a form of a judicial decision (in line of the Roman magistrate-law making), or new imperial legislation.
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.
PL
Opracowanie dotyczy obecnej roli, jaką w przepisach prawa i w praktyce jego stosowania odgrywa tradycyjna zasada osobowości prawa. Mimo dominacji, występującej od ponad tysiąclecia, zasady przeciwnej, tj. terytorialności prawa, napotkać można wiele współczesnych przejawów występowania i stosowania zasady osobowości prawa. Dotyczy to, w szczególności, żywotnych tradycyjnych praw osobowych charakterystycznych dla niezachodnich tradycji prawnych (w pierwszym rzędzie szariatu), w tym prób ich stosowania w otoczeniu zachodnich społeczeństw. Są także inne różne przykłady uznania, co najmniej w praktyce, przejawów osobowości prawa w państwach zachodnich, co jest wykazywane na przykładzie Polski.
EN
The paper concerns the present role played in law-in-the-books and law in action as well by a very traditional law type, namely that of personal law. In spite of the dominating role that the other type, i.e. territorial law, has played in Western law for more than a thousand years, there are numerous contemporary expressions of the existence and application of personal laws. In particular, this is the case of the vivacity of traditional personal laws characteristic of non-Western legal traditions (above all shari’a), including attempts at their application in the Western environment. There are also various other examples of the recognition, at least in the practice, of personal laws in the Western law jurisdictions, which is indicated with the example of Polish law.
PL
W niniejszym artykule omówiono główne wyzwania związane z odpowiedzialnością za szkody wyrządzone przez systemy sztucznej inteligencji (AI), które należy odpowiednio uwzględnić w systemie kolizyjnym Unii Europejskiej. W pierwszej części artykułu autorzy wskazują na trzy główne wyzwania, a mianowicie: 1) określenie osób odpowiedzialnych, 2) optymalny reżim odpowiedzialności za delikty AI oraz 3) określenie systemów AI wysokiego ryzyka. W drugiej części artykułu autorzy dokonują oceny stosowania przepisów kolizyjnych rozporządzenia Rzym II z tej perspektywy. Argumentują, że zharmonizowane ramy prawne na szczeblu UE są niezbędne, aby uniknąć ryzyka rozdrobnienia prawnego w wypełnianiu luk powstałych w wyniku bezprecedensowego postępu technologicznego spowodowanego przez sztuczną inteligencję. Temu celowi powinny służyć również normy kolizyjne prawa prywatnego międzynarodowego.
EN
This article discusses the main challenges related to the liability for damages caused by artificial intelligence (AI) systems that need to be properly addressed by the European Union (EU) conflict-of-laws regime. In the first part of the paper authors point out three main challenges, namely: 1) determination of responsible persons, 2) optimal liability regime for AI torts, and 3) determination of high – risk AI systems. In the second part of the paper the authors assess the application of the conflict-of-law provisions of the Rome II Regulation from this perspective. This article argues that a harmonised legal framework at EU level is necessary to avoid the risk of legal fragmentation in filling the gaps created by unprecedented technological advances caused by AI. This objective should also be pursued by the conflict-of-laws rules of private international law.
PL
Law applicable to the protection of the rights of personality rights is regulated by a method of alternative indication with two equivalent connecting factors. The interpretation of these criteria – the place of the infringement of personal rights and the place where the damage occurred – may cause difficulties. The interpretation given by the European Court of Justice in the cases of Shevill and eDate Martinez seems to be the first to be taken into account, although exceptions should be admitted in justified cases. If the effects of infringement of the rights of personality occur in the territory of many states, it is to be assumed that the damage existing in each of them is governed by its legal system. However, this mosaic principle should only be applied where the person requesting the protection indicates the applicable law of the place of effect. If the law of the place of the infringement of personal rights is indicated, the norms of one legal system should be applied.
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EN
This valuable study by Maurycy Allerhand was published in the Commemorative Volume to celebrate the 50th anniversary of judicial career of the President of the Court of Appeal in Lwów, Adolf Czerwiński. Also published as an offprint, the study is an important contribution of Allerhand’s on the issue of conflict of laws. Revisions of the original text are limited to changes of spelling.
PL
Poniższe opracowanie pióra Maurycego Allerhanda zostało opublikowane w Księdze Pamiątkowej ku uczeniu 50-letniego jubileuszu pracy sędziowskiej Prezesa Lwowskiego Sądu Apelacyjnego Adolfa Czerwińskiego. Ukazało się też w osobnej nadbitce. Jest ważnym głosem uczonego w kwestii prawa kolizyjnego a ciągle mało dostępnym, chociaż w literaturze obecnym. Dokonano tylko minimalnych zmian w ortografii.
EN
This paper discusses actio pauliana from a private international law perspective. Its aim is to determine which law governs the creditor’s right to avoid fraudulent transactions between the debtor and a third party. The methodology employed in this paper is based on the assessment of possible solutions as to the law applicable to actio pauliana. The legal framework of these solutions encompasses Rome I Regulation, Rome II Regulation and the Polish Private International Law Act. The analysis is preceded by references to international insolvency law and comparative remarks. The article leads to the following conclusions. For the purpose of classification in private international law, actio pauliana constitutes a separate and autonomous legal institution. The provisions currently in force contain no explicit rule regulating this issue, but the gap is to be filled with a norm adopting the closest connection as a connecting factor. Consequently, actio pauliana is governed by the law applicable to the effects of a fraudulent transaction.
EN
Tourism is nowadays predominantly international. This trend was begun somewhere about the second half of 20th Century and there is not any indications towards change it at the moment. This is not only a consequence of integration of European Union states, including free flow of person, but also still progressive globalization process. Therefore, the majority of contracts within the scope of tourist services is cross-border or includes international component. On the background of this type of contracts can arise tourist’s claims against tourist services providers as well as the latter against their subcontractors (hotel owners, tourist guides, carriers, etc.). Taking into account practical aspects in case of coming to existence these kind of claims, there is usually necessary to considered two main points. It has to be determined both law applicable to the contract and competent court. Mentioned above point of view is practical, because in accordance with the views of doctrine, law applicable to the legal relationship shall be considered irrespectively, even if the relationship does not include any foreign components. To consideration both cases mentioned above normally will be appropriate European Union acts applicable directly. In relation to the applicable law it is Regulation (EC) 593/2008 of the European Parliament and Council of 17 June 2008 on the law applicable to contractual obligations (Rome I). Competent court shall be considered in accordance with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I). The majority of tourist services contracts is concluded by consumers, what was refl ected in mentioned regulations as well. From the application of those regulations as well as previous acts (especially Brussels Convention) aroused a lot of particular questions and interpretational issues. Both the views of doctrine and jurisprudence, especially judgments of the Court of Justice of the European Union are very useful to consideration mentioned issues. This article was dedicated questions arising from the consideration of applicable law and competent court with respect to contracts on tourist services.
EN
It is one of the first studies in the field of aviation law and its link with private law. The author is the youngest of the three outstanding civil law scholars of the Lwów School of Private Law (next to Ernest Till and Roman Longchamps de Bérier), who in 1936 became involved in the Aviation Law Course created by Associate Professor Tadeusz Bigo at the Law Faculty of the Jan Kazimierz University in Lwów. The study is a sketch dealing with the problems of private law and conflict of laws related to aviation. It is based on the lecture entitled ‘Characteristics of Contemporary Private Aviation Law’, which he gave on April 22, 1937 at the Legal Society in Kraków.
PL
Jest to jedno z pierwszych opracowań z zakresu prawa lotniczego i jego styku z prawem prywatnym. Autor, to najmłodszy z trójki wybitnych cywilistów lwowskiej szkoły prawa prywatnego (obok Ernesta Tilla i Romana Longchamps de Bérier), który w 1936 r. zaangażował się w tworzony przez docenta Tadeusza Bigę Kurs Prawa Lotniczego przy kierowanym wtedy przez Przybyłowskiego Wydziale Prawa Uniwersytetu Jana Kazimierza we Lwowie. Opracowanie jest szkicem poruszającym gardłowe problemy prawa prywatnego i kolizyjnego związane z lotnictwem.
EN
The article confronts the unilateral and multilateral methods in private international law. The author first identifies the basic differences between the two. She then moves to describe the instruments and concepts resulting from the unilateral method: the theories of the Statutists in the period between 12th to 19th centuries, the solutions offered by the so called new American school, the method of recognition of private situations crystallized in a foreign legal system,  the rules governing the spatial scope of the EU provisions, including the regulations and the directives, and finally the paradigm of the overriding mandatory rules. The second part of the paper provides a comment to the Nikiforidis case. The author makes a number of critical remarks with respect to the restrictive and rigid interpretation of Article 9(3) adopted by the CJEU. The argument is made that the more flexible and functional approach proposed by the Attorney General Maciej Szpunar in his Opinion should be preferred. Finally, the author makes her own proposition regarding the Nikiforidis case. She advocates a unilateral methodology that rejects the distinction between the overriding mandatory rules of the legis fori, legis causae and these of a third country.
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