European Private International Law

579 Pages·2016·6.255 MB·English

by  Geert Van Calster

EUROPEAN PRIVATE INTERNATIONAL LAW
As one of the most definitive texts on the market, European Private International Law
provides an essential guide for both students and practitioners to the complex field of inter-
national litigation within the EU. The private international law of the Member States is
increasingly regulated by European law, making private international law ever less ‘national’
and ever more EU based. Consequentially EU law in this area has penetrated national law to
a very high degree, making it an essential area of study and an area of increasing importance
to practising lawyers. This book provides a thorough overview of core European private
international law, including the Brussels I, Rome I and Rome II Regulations (jurisdiction,
applicable law for contracts and tort), while additional chapters deal with the recently
adopted Succession Regulation, private international law and insolvency, freedom of estab-
lishment, and the impact of PIL on corporate social responsibility.
To the memories of my mother, Maria Ronsen, and of my youngest brother, Suresh.
In liefdevolle herinnering aan Maria Arthur Jeanne Ronsen.
J’ai le cœur heureux sans peur du lendemain.
Aan Suresh. ‘Tweeling’. Brother in Arms. Ce même cœur te manque beaucoup.
European Private
International Law
Second Edition
Geert van Calster
Professor Ordinarius and Head of the Department of
International and European Law, KU Leuven
Barrister, Member of the Belgian Bar
OXFORD AND PORTLAND, OREGON
2016
Hart Publishing
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First published 2016
First edition published 2013
© Geert van Calster
Geert van Calster has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work.
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopying, recording, or any information storage or retrieval system,
without prior permission in writing from the publishers.
While every care has been taken to ensure the accuracy of this work, no responsibility for loss or
damage occasioned to any person acting or refraining from action as a result of any statement
in it can be accepted by the authors, editors or publishers.
Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s
Printer for Scotland. Any European material reproduced from EUR-lex, the official European Communities
legislation website, is European Communities copyright.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN: HB: 978-1-84946-672-1
ePDF: 978-1-50990-596-6
ePub: 978-1-50990-597-3
Library of Congress Cataloging-in-Publication Data
Names: Calster, Geert van, author.
Title: European private international law / Geert van Calster, Professor Ordinarius and Head of the Department
of International and European Law, KU Leuven, Barrister, Member of the Brussels Bar.
Description: Second edition. | Portland, Oregon : Hart Publishing, 2016. | Includes bibliographical
references and index.
Identifiers: LCCN 2015050621 (print) | LCCN 2016000197 (ebook) | ISBN 9781849466721
(pbk. : alk. paper) | ISBN 9781509905973 (Epub)
Subjects: LCSH: Conflict of laws—European Union countries. | International
and municipal law—European Union countries.
Classification: LCC KJE982.C35 2016 (print) | LCC KJE982 (ebook) | DDC 346.24—dc23
LC record available at http://lccn.loc.gov/2015050621
Typeset by Compuscript Ltd, Shannon
PREFACE TO THE FIRST EDITION, 2012
This volume introduces the reader to the most important parts of European private inter-
national law. It focuses on what a practitioner, student, and policy-maker will be most con-
fronted with. In doing so, it covers the legislative history of the relevant instruments only
insofar as this is required to help understand, and apply, the current provisions. It priori-
tises the areas which are of most relevance to commercial practice in the EU, leaving out in
this volume in particular family law.
European private international law, as this book shows, is evolving fast. It is hoped that
this overview both assists daily practice, and enables further study where needed.
Thanks are due to my fellow faculty at KU Leuven, in particular former Dean Paul Van
Orshoven, for the opportunity to teach the Conflicts chair at Leuven; to my clients and
the lawyers at DLA Piper, for continuously involving me in facts greater than fiction; to
my hosts at King’s College, London, and Monash University, Melbourne, for showing me
the common law angle to many of the issues discussed here; and to my in-laws, Roger and
Angelika Garnett Krabbe, for the room in the Montaut attic where I was able to make the
first real progress on writing this book.
Recent developments are posted on my blog, www.gavclaw.com.
Geert van Calster
Leuven
14 November, 2012
vi
PREFACE TO THE SECOND
EDITION, 2016
I finalised the first edition of this book in November 2012, noting that ‘Recent develop-
ments are posted on my blog, www.gavclaw.com.’ The pace of these developments have
been such as to call for a complete revision of the book less than three years later.
The Brussels I Regulation has been replaced with the Recast. The Insolvency Regulation,
too, already has a successor. CJEU and national case-law, in particular on the Brussels I
Regulation, comes fast and furious. Ever more cases on the interpretation of Rome I and II
are reaching Luxembourg.
I have also taken the opportunity to add a chapter on the Succession Regulation, adopted
in 2012, and to insert recent developments in the remaining chapters. The text in this
volume reflects the state of the law on 1 January 2016.
Despite all these substantial changes I am confident the book has kept the focus which
earned the first edition so much praise. In order to keep this book to a manageable size I
have elected not to include too many references to scholarship. I am pleased, however, that
many colleagues have invited discussion on a wide variety of legal and practical issues.
Private international law remains an area where academic understanding is best coupled
with practical insight. I owe thanks to the many clients who continue to give me insight
into the practical reality of international dispute resolution. Hopefully, I have been able to
give them a similar insight into the legal machinery behind it all. (Or at the least made their
exposure to it less bamboozling.) I am also particularly grateful that they reward me with
their confidence now that I have left the nest of international law firms with the start of my
own legal practice.
The support, love and confidence of my wife and children continue to be a precondition
for my many ventures. Kathleen, Jakob, Klara Maria, Lydia and Richard: the home you pro-
vide is much, very much appreciated!
This book is dedicated to the memories of my mother, Maria Ronsen, and of my young-
est brother, Suresh.
My mother and my father’s love and affection, faith, and dedication to education, have
opened all my worlds to me.
That same love and affection have enabled my siblings and I to comfort Suresh through
his devastating illness, and to see, through our shared faith, what lies beyond.
Geert van Calster
Münster/Leuven,
3 January 2016
viii
CONTENTS
Preface to the First Edition, 2012 ...............................................................................................v
Preface to the Second Edition, 2016 ........................................................................................vii
Table of Cases ........................................................................................................................xvii
Table of Legislation. ..............................................................................................................xxxv
Table of Conventions, Treaties .................................................................................................liii
1. Introduction ...................................................................................................................... 1
1.1 The Concept, Nature and Development of
Private International Law ......................................................................................... 1
1.2 Sources of Private International Law ...................................................................... 2
1.3 The Three Processes of Private International Law,
and Standard ‘ Connecting Factors ’ .......................................................................... 3
1.3.1 Procedural Issues ......................................................................................... 3
1.3.2 Application of the Law ................................................................................ 4
1.3.2.1 Characterisation (French: Qualifi cation)
of the Legal Question ................................................................... 5
1.3.2.2 Connecting Factor ........................................................................ 5
1.3.2.3 Lex Causae ..................................................................................... 5
1.4 Characterisation, Renvoi and the ‘ Incidental ’ Issue or V orfrage .............................5
1.5 Forum Shopping and F orum non Conveniens ......................................................... 8
1.6 The Impact of European Law on the Private
International Law of the Member States ............................................................... 12
1.6.1 Legal Basis .................................................................................................. 12
1.6.2 The Development of European Private
International Law Policy ............................................................................ 15
2. The Core of European Private International Law: Jurisdiction .................................... 21
2.1 Summary ................................................................................................................ 21
2.1.1 The Brussels I Recast Regulation .............................................................. 21
2.1.2 Scope of Application: Subject-Matter ....................................................... 23
2.1.3 Scope of Application — Ratione Personae ................................................. 24
2.1.4 The Jurisdictional Rules of the Regulation ............................................... 25
2.2 Detailed Review of the Regulation ........................................................................ 26
2.2.1 Trust is Good, Control is Better ................................................................ 26
2.2.2 Scope of Application: Subject-Matter ....................................................... 27
2.2.2.1 The Existence of an International Element ............................... 27
2.2.2.2 Civil and Commercial Matters .................................................. 30