Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Co-maternity, Gender Neutral Parentage and Multi-Parentage: New Challenges for Polish Private International Law in Matters of Filiation

Paulina Twardoch — 2023-09-28

The article presents new types of parentage, adopted in foreign legal systems. The analysis is carried out not only at the substantive law level, but also in terms of conflicts of laws that may emerge in Poland with regard to those new institutions. Firstly, the Authors explain why such new instruments should be characterised as covered by the scope of Polish conflict rules on filiation and not of those on adoption. Next, particular legal solutions, adopted in different states, concerning filiation are discussed and analysed from the perspective of the Polish private international law. Those foreign solutions are: co-maternity (established by operation of law or by the acknowledgment of a child by the co-mother), parentage based on gender neutral dispositions, and multi-parentage (resulting from a pre-conception agreement or from a judicial decision). Besides indicating which conflict rules (statutory or conventional) should be applied in order to identify the law applicable to particular kinds of those foreign institutions, the Authors also try to define the scope of the law applicable in this regard. Finally, the Authors discuss circumstances in which the Polish public policy exception should intervene against effects of the application of foreign rules concerning types of parentage unknown in the Polish legal system.

Incoterms 2020 — Success or Risk of Devaluation?

Zuzanna Daszkiewicz — 2023-11-09

The process of legal unification is one of the major challenges of private international law. It has a long history, however it did not result in definite conclusions on effective mechanisms of conducting the unification process. The publication of the Incoterms 2020 provided an inceptive to the consideration of the reasons for the success of some initiatives for the unification of private international law and the failure of others. There are a number of legal instruments for legal unification. The focus of the paper is primarily on Incoterms-like acts that do not originate from the legislative authority. Among these, standard contractual clauses and sets of rules can be mentioned, as well as conventions.The article discusses diverse projects and attempts to answer the question of what characteristics such an instrument should have in order to become widespread. The analysis is carried out taking into account norms of competence and substantive law and its relations to Incoterms 2020. Finally, the paper also touches upon case-law practice related to Incoterms and their relevance to international civil proceedings or tax law.

The Specific Nature of Representing Children’s Interests under Martial Law

Roksolana Khanyk-Pospolitak — 2023-11-14

Russia’s armed aggression, and the subsequent imposition of martial law in Ukraine, made it necessary to move children to safer areas of the country and abroad. This concerns both children who move with family members (not always legal guardians) as well as children who have no parental care during the process. Due to this issue, the representation of children is of particular importance, in particular in connection with changing the place of the child’s residence, its movement, border crossing, registration of status (such as a child with no parental care, an internally displaced person, a person who received temporary protection, a refugee, etc.), as well as a possible appeal to the court in this regard. This article defines the term “child” according to Ukrainian legislation. It is noted that the definition is age-based — these are people under the age of 18. The legislative division of children into “minors” and “underage” affects the scope of their rights and responsibilities. Further on in the article, the powers of various authorities of Ukraine are determined, which stem from the need to protect the rights of children, especially those who are abroad, in particular in relation to interactions with the relevant authorities of the state where the children reside. It is noted who the legal representatives of the child are and what documents confirm the legal representation. Special attention is paid to the legal representation of children without parental care, along with the question of who can represent children if they move to areas where they have no legal guardians. It is noted that, under the conditions of martial law, the procedure for taking a child into family forms of placement (guardianship, care, foster family, etc.) has been significantly simplified. Unlike the situation under usual conditions, representation in times of martial law is often accompanied by the need to take into account certain special rules introduced during the period of that state, and confirmation of authority can be complicated by
actual circumstances (such as evacuation), or the specifics of the settlement of relations of a representative office abroad. At the same time, representation should be carried out with the maximum possible consideration of the best interests of the child.

Evaluative Mediation in Business Disputes Under the Provisions of Polish Law From the Perspective of Europan Union and International Law

Katarzyna Pokryszka — 2023-12-29

The 2015 amendment to the Polish Civil Procedure Code provided a legal basis for the evaluative mediation. The amendment intends to improve the effectiveness of mediation in civil and commercial cases in Poland. The aim of the article is to analyse the premises for conducting evaluative mediation under Polish law in the light of the provisions of international law and European Union law, which set forth the standards for conducting mediation in business disputes. The article discusses the concepts of facilitative and evaluative mediation and points out the controversies that may arise against the background of the application of evaluative techniques from the point of view of the basic principles of mediation as a dispute settlement method. The author focuses on the interpretation of the definitions of mediation. She presents fundamental principles of mediation as enshrined in the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018) and the EU Directive 2008/52 on certain aspects of mediation in civil and commercial matters, considering them as a point of reference for the analysis of the conditions enabling the mediator to propose to the parties the methods of resolving the dispute that have been adopted in Polish law.

Jurisdiction in Tort Claims Related to dieselgate in Light of the Existing Case Law of CJEU: Comments on the Basis of the Judgment in C-343/19 VKI v. VW and the Decision of the Polish Supreme Court of 12 May 2022, II CSKP 1506/22

Maciej Zachariasiewicz — 2023-12-29

The article discusses the judgment of the Court of Justice of the European Union (CJEU) in case C-342/19 VKI v. VW and the decision of the Polish Supreme Court of 12 May 2022, both connected with the infamous “dieselgate”. The cases concerned claims of the owners of Volkswagen cars equipped with the “defeat devices” that manipulated the emissions tests. The question decided by both courts was whether claimants may enforce their tort claims for damages against the manufacturer in the Member States where the cars where acquired. CJEU found that they do and the Polish Supreme Court followed suit. The article analyses both cases against the background of existing case law of the European Court under Article 7(2) of the Brussels I Regulation. According to the well-established case law of the Court, the place of harmful event is to be understood both as the place where the event leading to damage is located, as well as the place where the damage occurred. Regarding the place of damage, the author takes the view that it occurs not in the state where the car is acquired – as found by CJEU - but where it is registered and used. This in itself should not, however, suffice to establish the jurisdiction of the court at the place of damage. In each case (and not only when the damage is purely financial) the court must confirm under the individual circumstances of the case that this place is suitable as the forum for resolving the dispute. Among these circumstances the most important is that of the foreseeability for the defendant that because of his or her actions he or she can be sued at the given forum. This possibility to foresee should be established on the basis of defendant’s actions undertaken in the forum. In cases where a defective product is the source of liability (such as in VKI v. VW) these are in particular: marketing products in that state or directing advertising activities thereto. The paper also compares European solutions with those adopted in US. The author argues that the CJEU should more bold in looking into an American standard that requires “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” and thus protect the defendant from being sued in a place of damage that is loosely connected with the case.

Does Participation of a Witness Confirming the Principal’s Action with His Own Signature Fall within the Scope of the Law Applicable to the Form of the Power of Attorney? A Note to the Judgment of the Supreme Court of 13 January 2022 (III CZP 22/22)

Jacek Górecki — 2023-12-29

The District Court in Kielce asked the Supreme Court to resolve the following legal question: “Does the participation of a witness, confirming the principal’s action with his signature, belongs — pursuant to Article 25(1), second sentence, of the Act of 4 February 2011 Private International Law (i.e. Journal of Laws 2015, item 792) — to the scope of the law applicable to the form of the power of attorney granted in the State of
Illinois (USA) concerning the transfer of ownership of real property located in Poland?”. The Supreme Court refused to deal with the question, but indicated at the same time that, in the light of Articles 23 and 25 PIL Act, the applicable law for the assessment of a power of attorney is the law of the State of Illinois being the law of the place whereit was made (the law of the place where the legal act was performed — lex loci actus).
Furthermore, the Court pointed out that in posing the question, the Regional Court did not make exhaustive findings as to the content of the applicable law. The decision of the Supreme Court raises unease. In particular, doubts concern the Court’s finding that, for the purposes of resolving the legal issue presented to it, it is necessary to first prejudge the meaning and function of the requirement under consideration and the reasons for its establishment, as well as the consequences of the failure to comply with it under the law applicable to the form. The legal issue presented to the Supreme Court could have been resolved on the basis of the qualification made against the background of Article 25(1) PIL Act. For it was not necessary to undergo a detailed analysis of the provisions of the Illinois Power of Attorney Act and to determine the role of a witness to the granting of a power of attorney regulated by these provisions. The participation of witness in the legal act performed by the principal falls within the scope of the law applicable to the form of the legal act within the meaning of Article 25(1), sentences 1 and 2 PIL Act. The role of a witness in the case under consideration is to confirm with his/her signature that a power of attorney has been granted in his/her presence and that the principal has affixed his/her signature to the content of the declaration by which he/she grants this power of attorney. In this legal action, the witness plays a role similar to that of a notary public, whose participation in the execution of the action is also required, which is not disputed as a requirement covered by the law applicable to the form.