International Law (Fach) / Prüfungsvorbereitung (Lektion)

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• 1. When the case takes place within one country between its citizens, which law shall be applied? The law of the country, where the case takes place. Why? They both have connection to this country.
• 3. What is the case, if the parties to the treaty do not belong to the same country and / or if it is a cross-border deal? First question: Which law should be applied? Answer to this question can be found in the rules of private international law. It would be a conflict of laws. The rules of "conflict" say which law shall govern the case.
• What does a conflict of laws do? Conflict of laws does not give an idea about the outcome of the case, but which law shall be applied to solve the case. Solution would be in the substantive law (e.g. German BGB).
• 5. Three circumstances give evidence for the application of conflict laws. The parties of a contract belong to different countries. People do have their residence in a foreign country. A person is acting abroad. The parties choose foreign law. Property is situated abroad.
• 6. Give the difference between substantive law and conflicts. Conflict (e.g. IACC)e.g. Art 25 IACC: Succession is governed by the law of the country of which the deceased was a national at the time of death = Does not sa anything about the what happens in case of inheritance, but it tells which statute is applicable. What law has to be applied? Substantive law (e.g. CC. Ger.)E.g. Upon the death of a person, that person's property passes as a whole to one or more other persons = Tells, what happens to the property of a person in case of death => The result    
• 7. Basic Principles of conflict - Name three Principle of equality: All legal orders are principally of the same quality. No ranking between legal order. Private international law seeks to find the statutes to which the connection of the subject matter is closest. National law is applied in "national" cases; only if the connection with the subject matter is closer to foreign law, foreign law shall prevail. Generally (exception: Art. 6 IACC), private international law does not evaluate the applicable law. Rome 1: Article 21; Rome II: Art. 26
• 8. Structure of a Rule of Conflict of Laws in Detail Structure of any law: matter of fact and the legal consequence subject being tied = term of the system of private law (Succession) item that is tied = leads to the legal system refferred to ("is governed by the law of the country of which the deceased was a national ...") Legal Consequence: application of the law reffered to (is governed by the law....)
• 9. Typical items, to which subjects are tied in conflicts - Name 4 Nationality (close connection of the person with certain culture/legal order) - Familiy law, marriage law, law of succession Domicile and / or habitual residence (socialization of a person with regard to a certain place) - international treaties and conventions, domicile: Art. 26 I No. 3 IACC, habitual residence: Art. 4 I, 6 I Rome I Place of Action(where the person has acted,  relevant with regard to formal questions (Art. 11 alt 2 IACC) Place of Result (In cases of tort / delict the connection is defined by place in which damage occurs (see Art. 4 I Rome II-VO) Place where property is situated (often defines the connection. esp. immovable property) Place of litigation (Procedural questions) Partie's will/agreement (free will of private persons Art. 14III, 15 II, 26 IACC)
• 10. Limitations to Private Autonomy Free will of the parties is limited by by ordre public (Art. 6 IACC) by laws regarding consumer protection by basic right
• 11. Check List for Cases of Conflict 1) Connection to another country? (Art. 3 IACC) 2) Directly applicable any international conventions (Art. 3 No. 2 IACC)- UN Convention on Contracts, find in German law = if this is applicable (B2B-case), there is no conflict of law = in every country 3) Relevant rule of conflict that fits: - Rome I = contracutal obligations- Rome II = non-contractual obligations 4) Application of the rule of conflict (Use) 5) Legal Consequences and apllication of the substantive law of the legal order identified 6) Limits of application (with regard to application of foreign substantive law - Art. 6 IACC, or Art. 21 Rome I)
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• 12. Definition of "referral" IACC either refers a) to the statutes of another State only (refferal to substantial law) or b) to substantial law as well as to the conflict rules of another state (general refferal) A case is handed over by country A to a legal order of country B. And country B refers it back to country A (there it goes first to conflict law and than to the material law Art. 4 § 2) or to country C. It refers to conflicts (look at the diagramm!!)
• 13. Explain 3 different stages of referal General Referal:Acc. to Art. 4  I 1 IACC refers to the rules of conflict of the other country, too. The Conflict of Rules can accept the referal: substantial law of the foreign country is applied renvoi the case back: substantial law of the first country is applied or (further) refer to the law of a third State: may accept the further referral, refer back or refer to the law of a 4th State or to the law of the "original" state
• 14. What is the CISG? CISG = Vienna Convention on Contracts on the International Sale of GoodsSpeciality: It is a material law because every memember state has implented it to its national law For this reason it prevails Rome I (Art. 25 I Rome I / Art. 3 No. 1 lit. b IACC.) - Consequence: No application of PIL regarding the contractural statute
• 16. When is the CISG not applicable? This Convention does not apply to sales: (Art. 2) a: "of goods bought for personal, familiy or household use, unless the seller at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use" b) - f) look to to the CISG  
• 18. Can the parties to a treaty vary the rules of CISG and if yes how? Even if CISG is applicable (Art. 1 I, Art. 2 CISG) the parties can exclude its applicability either entirely or in parts or they can modify its regulations: "This treaty shall be governed by German law excluding CISG" Have to do it expressly, because the CISG is a part of a national law! Exclution on the whole of CISG and varying the effect of its substantial rules: Art. 6 1 CISG  
• 19. What kind of contract of Sale of Goods and what kind of goods does CISG regulate? a) CISG regulates purchase of removable goods (see Art.. 1 I CISG)- not for buying of immaterial rights, claims, companies(Art. 2 CISG) b) Buying, not other Kinds of Treaties (buying goods in change for money)- does not contain: barter deals, compensatory contracts c) Contracts for the Supply of Services- but does not consist contracts that manily deal with the supply of services (Art. 3 II CISG)
• 21. What is the aim of the Preamble to the Rome I Regulation? The Preamble explains the aim and reasons for the single regulations. Because different States with different legal traditions are affected by Rome I. The Preamble shall help to similarly apply Rome I within all 27 Member States of the European Union.   Rome I: creation of an area of freedom and justice; to make trade easieer
• Subjects regulated by Rome I It regulates contractual obligations connected to more than one country; the connection does not have to be to one or more countries of the EU. Unjust enrichment, Negotiorum gestio and culpa in contrahendo (cic) are regulated in Art. 10 - 12 Rome II.
• 23. What does the law of contracts in Rome I contain? - the closing of a treaty and its validity (Art. 10)- the interpretation of obligations (Art. 12 I lit. a)- the way of fulfilment (Art. 12 I lit. b)- the consequences of non-fufilment of contractual duties (Art. 12 I lit.c)- termination and the limitation of obligations (Art. 12 I lit. d)- the consequences, if a treaty is void (Art. 12 I lit. e)
• 24. Which limitations in the freedom of choice of the law does Rome I stipulate for? Acc. to Art 3 Rome I parties are free to choose the applicable law. The freedom of choice is limited as follows: - obligatory national law, when a case is "national (Art. 3 III), highest ranking of national law: Basic Law / Constituional Law- obligatory Community Law (Art. 3IV), e.g. European Law (higher than Basic law)
• Which other options do you have to choose a law? parties are able to choose the law applicable on the treaty expressly or by tacit consent =can be proofed by certain facts (strong and less strong indications)    
• 26. What are strong indications for a choice? strong indications: - agreements on a certain forum - agreements on the place of settlement - use of forms etc. that stem from a specific legal order - use of legal terms in of a certain legal order - regulations in former contracts of the parties - behaviour of the parties in the court - refferal to other treaties or to a certain legal order  
• 26. What are less strong indications for a choice? - language of the contracts - currency of payments - place of the conclusion of a contract
• 27. How are formal requirements regarding the closing of a treaty dealt with Rome I? Rome I seeks not to make treaties invalid due to the fact that the parties to the treaty did not observe formal rules .- Art. 11 I: a contract is formally valid if it satisfies the formal requirements of the law of the country where it is concluded (pre-con. both parties are in the same country at the time of the conclusion of the contract) - Art. 11 II: regulations in other cases of the closing of a treaty which seek not to make treaties invalid due to formal requirements - see more Art. 11 Rome I
• 28. What kind of provisions does Rome I refer to? Substantive or provisions of private International law? - Refferal principally made to substantive provisions  - this excludes renvoi to another legal order (Art. 20 Rome I)
• 29. Does Rome I contain any provisions regarding the protection of consumers? YES Art. 6 Rome I §1 - if a professional (Art. 6 I a/b Rome I) acts in the country where the consumer (Art. 6 Rome I) has his habitual residence, the law applicable is determined according  to Art. 6 Rome I Art. 6 Rome I §2 - Choice of law
• 30. What specialities do the consumer protective provisions provide for? Autonomous Connection of a Case acc. to Art. 6 I Rome I- the law of the Stat is applicable where the consumer has its habitual residence, provided that the professional a) pursues his commercial or professional activities in the consumers country, or b) directs such activities to that country or to several countries incl. consumers country and the contract falls within the scope of such activities (esp. via internet) Connection according to Art. 6 III Rome I- as far as the requirements of Art. 6 I a/b are not met, Art. 6 III leads to the application of Art. 3 (applicabl. law is chosen) or 4 (applicabl. law is objectively determined) Choice of law limited acc. to Art. 6 II Rome I- Art. 6 II 2 Rome I stipulates , that the choice of law may not have the result of depriving the consumer of the protection Excluded Treaties acc. to Art. 6 IV Rome I- this article lists all kinds of treaties that are excluded (take a look) freedom of choice (Art. 6 (2) - Rome I) - freedom to set up a treaty the consumer can't deprive his rights  
• 31. Where are questions of delict and tort regulated? particularly Rome II
• 32. What is the common aim of Rome I and Rome II? Both regulations have the aim of creating similar condlict of law-rules in the field of contractual obligations (Rome I) and in the field of non-contractual obligations (Rome II) (delict and tort)
• 33. What is the scope of Rome II? Art. 1. 1 Rome II= Situations involving a conflict of laws, to non-contracutal obligations in civil and commercial matters Shall not apply= revenue, customs, administrative matters Rome II excluded= Art. 1. 2 (Exclutions) + Art. 3 Universal apllicability  
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• 35. What is the speciality regarding the choice of law in delict cases? - Check: Whether or not the contracting parties did choose a legal order (Art. 14 Rome II)- A choice of law "after the event giving rise to the damage occured" : Art. 14 I lit. Rome II- A choice of law "before the event giving rise to the damage orccured" is possible "where all the contracting parties are pursuing a commercial activity: Art. 14 lit. Rome II = they are professionals, they can choice the law
• 36. What is the "event giving rise to the damage occured"? Examples! Within the regulations of tort/delict there exist two relevant points in time:- the time at which the event occurs, giving rise to the damage Art. 14 Rome II) - the time when the damage occurs (incedent of damage, Art. 4 I Rome II) Example:S constructs a building. due to a mistake in the construction the building collapses one year later and hurts B:= event giving rise: time of construction= incidence of damage: time, when building collapsed and hurt B
• 37. What does "principle of causality" mean? as the action (= the event giving rise to the damage occured) often coincidences with the damage, their distinction seems to be artificial. The necessity to distinguish the different points in time gets obvious when one keeps in mind that without causality the results would be different: action of the violator=causality=> event giving rise...=causality=> damage Example: S crosses a red traffic light; G gets hurt by the car of D, but S's mistake did not cause this = The event giving rise to the accident of G is not the action of S but that of G = Therefore S is not liable regarding G's damage because his action did not cause G's accident.
• 38. What happens in a delict case, if the injuring and the injured person both have their habitual residence in the same country! Quote! Common Habitual Residence of the Person Claimed to be liable and of the person sustaining damage:when they both have their habitual residence in the same country, the law of this country shall be applicable ( Art. 4 II Rome II) Reason= the habitual residence shows a deep connection tho the state; 2 persons same habitual residence = this fact is a strong indication that the legal order of this state is the one dominating the private life of both persons = apply this country's laws for questions reg. delict/tort.
• 39. Description of - International Ecnonomy - International Law - International economic law - International Economy: careful management of resources to avoid unnecessary expenditure or waste on an international level - International Law: A rule of conduct or procedure established by custom, agreement, or authority that can be applied in an international manner - International Economic Law: International economic law means international law relating to investment, economic relations, economic development, economic institutions, and regional economic integration.
• 40. Scope of international economic law? It regulates regarding its subjects: - Economic relations between States- Trans-national economic relations between individuals
• 42. Subjects of international economic law? States:   Companies:   Individuals:  
• 41. 3 examples of objectives of international economic law - Import duties on foreign products- special taxes on foreign products- protection of intellectual property- questions regarding to State's currency
• 43. What is public international law about? - Public international law is a private law among states & it regulates affairs on the level of equality
• 44. Where are regulations dealing with companies in trans-national operation? - Rules on conflict of laws- State's treaties dealing with those questions- International agreements like WTO or IMF or UN Charter (Chapter 9 and 10)
• 45. Rules to protect individuals - normally: legal rules in single State's law (e.g. German Civil Code) or State's constitution (German basic law)- I. also protected by international treaties dealing with Human Rights (e.g. European Charter on Human Rights, UN Declaration on Human Rights)
• 46. 4 basic principles in public international law regarding States Basic principles: - Equality of States- Friendly relationship- Non-agression- Solve conflicts in peace- Sovereignty- respect human rights  
• 48. How are international treaties transferred to national law? - Procedure of ratification - treaty is signed - it has to be adopted 
• 50. How does international custom enter into force? customary law= the law of certain common practice - States, in their relations among each other, behave in a certain manner - They are convinced, that this behaviour is due to a legal duty - they show this behaviour for a time long enough to create law = Example:  the immunity of diplomatic staff as well as the immunity of the buildings of the embassys stem from international custom = but there is no fixed time, when it is enter into force (just need a certain time)
• 51. Characterise EU law with regard to public international and to national law - not a part of the "normal" Public International Law- special law create by its member states, as an international treaty (so called 'Rome Treaties'- member states of the EU passed part of their soverignty to the EU by their free will- EU-law prevails national law
• 52. What are the 3 major sources in national law and what is the scope of them? - Civil law(equality), Public law (subordination, states authority), Criminal law (states authority - rules regarding economic topics often deal with trans-national problems
• 54. How does the EU "work"? What are the major institutions of the EU? - People of the EU Member-States elect the European Parliament - each EU Member-State has its representatives in the European Council - European Parliament and European Council initiate an pass decsions, regulations - The European Commission with the President can initiate to this process and gives recommondations and statements + makes decisions - The European Court of Justice (ECJ) does the judicial control
• 55. Hierachy of legal sources in the EU? In a Member State: European law Constitution (e.g. BL)the general rules of international law, the federal law, the Länder law, the law of local public bodies or authorities Within EU: -Primary EU law (treaties on foundation of EU, General Principles; Human Rights)- Treaties and international conventions close by the EU; general principles of PIL; duties form the UN charter- Secondary EU Law: Directives, Regulations, Decisions, Recommendations/Opinions (TFEU Art. 288)
• 57.Name the legal instruments of the EU Article 288 TFEU - Regulation: shall have general application; it shall be binding in its entirety and directly applicable in all member states - Directive: shall be binding as to the result to be achieved, upon member state to which it is adressed, but shall leave to the national authorities the choice of form and methods - Decision: shall be binding in its entirety; a decision specifies those to whom it is adressed shall be binding only on them - Recommendations and opinions: shall have no binding force
• 59.What is the difference between a free trade area and a customary union? Free trade area: no customs between member states; states keep individual customs customary union: common customs, common restrictions regarding non-members Difference between EU and customary union: The EU has common economic policies and common bodies. highly integrated members!

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