Problemy Prawa Prywatnego Międzynarodowego T. 27 (2020)

The article deals with the recognition of talaq divorces (repudiation) in Poland and discusses reasons to oppose thereto. There are no doubts that repudiation of a wife, as known in Islamic legal systems, is contrary to fundamental principles of the Polish legal system. First, talaqs are discriminatory since they are available only for the men. The equality of spouses is thus violated. Second, the principle of the stability of marriage is infringed, given that repudiation does not often require to satisfy any conditions or requirements (other than repeating three times the word talaq). The author argues, however, that despite being in clear violation of the Polish public policy, talaq divorces should sometimes be recognized. In each and every case, the court must assess the individual circumstances of the case at hand. In particular, the recognition might be justified if the links of the case with the forum are weak. Likewise, if considerable time has passed since the divorce and the spouses to the repudiated marriage started new lives (especially entered new marriages), might the court refrain from enforcing Polish public policy. The court should also investigate the details of the talaq in question, because the
laws and practice of the various Muslim countries differ considerably. Not all talaqs are of the same kind. It is relevant to what extent the given talaq was unilateral or whether the woman has somehow consented to divorce and the degree of financial protection offered to the repudiated spouse. The involvement of the public authority which ensures that due process is observed and women’s rights are protected, might also justify recognition of the talaq divorce.

Disputes arising from international data breaches can be complex. Despite the introduction of new, unified EU regulation on the protection of personal data (GDPR), the European Union failed to amend the Rome II Regulation on the applicable law to non-contractual liability and to extend its scope to the infringements of privacy. GDPR only contains provisions on international civil procedure. However, there are no supplementing conflict-of-law rules. In order to determine the applicable law national courts have to apply divergent and dispersed national codifications of private international law. The aim of this study is to propose an optimal conflict-of-law model for determining the applicable law in case of infringement of the GDPR’s privacy regime.

The purpose of the article is above all to show possible changes in the field of cross-border family matters as a result of Brexit. From a Polish perspective, this topic is particularly socially significant due to the numerous labor migration of Poles to the UK. It is estimated that around one million Poles live in the UK. First, the article presents current sources of law regarding cross-border family matters (EU law, international agreements, internal law). Next, possible solutions to family matters and their strengths and weaknesses were discussed after Brexit. Finally, solutions currently adopted in the UK and the biggest concerns related to them are shown.

The article presents the issue of the jurisdiction of a civil court in the light of the provisions of the EU Brussels I bis Regulation in relation to a matter in the field of insurance guarantee. This was presented against the background of qualification considerations of the insurance case and delimitation of the norms of the EU Brussels I bis Regulation in relation to disputes under the insurance contract from reinsurance disputes (in the strict sense and the so-called retrocession). At the same time, reasons were given for excluding social security from this scope. Because in practice (and in theoretical approaches) there are discrepancies as to the scope of the subject application of the standards in relation to individual insurance activities, one of the objectives of this study is to indicate that such nterpretation possibility which such a gap will remove, because it is even be harmful to the certainty of turnover, if it would appear in relation to such fundamental
concepts as jurisdiction in international insurance disputes and jurisdiction in domestic disputes. Consequently, basically based on an autonomous interpretation and in the alternative: lex fori the possibility of refusing to apply the standards of section 3 of EU Regulation No. 1215/2012 to disputes in the field of insurance guarantee. An appropriate analysis of national law was also carried out, indicating the need for coherence between EU and internal law standards in the area of qualifying disputes arising from the insurance guarantee.

Brexit is a unique phenomenon as no Member State has ever expressed the will to leave the European Union. Never before had the in-depth impact of a Member State withdrawal been analysed. The issue has started to be analysed after the referendum in which the British voted in favour of leaving the European Union. The topic of the potential consequences of Brexit in the field of private international law concerns, inter alia, national jurisdiction in civil and commercial matters, mutual recognition and enforcement of judgments, specific procedures of EU uniform law, judicial cooperation between Member States or the functioning of the e-Justice Portal and dynamic forms. Before a given Member State withdraws from the EU, interested parties should have been informed, inter alia, of how pending proceedings will be conducted starting with the withdrawal day, what about proceedings initiated at the date of withdrawal or later on, and what about the rulings of the courts of the applicant state covered by the exequatur procedure before the withdrawal. Therefore, the primary purpose of the article is to determine the framework for the future relationship between the EU and the UK in the field of private international law. An additional aim of this paper is to better prepare natural and legal persons for the new post-Brexit reality. European integration has brought Europe peace and prosperity and enabled unprecedented cooperation in all areas of common interest. Following the withdrawal decision, the state and its citizens cease to benefit from the acquis communautaire. In fact, the United Kingdom left the European Union on 31 January 2020. As far as private international law is concerned, the United Kingdom has become a third country. Subsequently, on 1 February 2020 a transition period has started and it aims to provide more time for citizens and businesses to adapt. The negotiations on the future partnership between the EU and the UK has started in March 2020, but they were postponed due to the coronavirus COVID-19 pandemic. The relationship between the United Kingdom and the European Union is sometimes compared to love that has passed away, but former lovers must continue to meet from time to time to manage certain common affaires. The analysis of the topic leads to the conclusion that, in fact, Brexit is a unique phenomenon that has no added value.

The position of the executor of the will is governed by the law applicable to succession (Article 23(2)(f) of the EU Regulation 650/2012), while the position of the succession administrator of the estate of a business of a physical person located in Poland is subject to the Law of 5 July 2018 on the succession administration of the business of a physical person (the legal basis for such solution is in Article 30 of the EU Regulation 650/2012). However, if the court needs to determine the law applicable to certain aspects of appointing or functioning of these institutions, which have a nature of partial or preliminary questions, these laws will apply, as determined in line with the methods elaborated to deal with partial and preliminary questions in private international law. The rules devoted to the executors of wills are usually not self-standing. In such situations, the legislators most often call for supportive application of the rules designed for other matters existing in the same legal system (here — of the legis successionis). This is referred to as the absorption of the legal rules.

The entirety of norms on the relations connected with conclusion and performance of insurance contracts make up economic insurance law. Because of its objective homogeneity, it is generally treated as a separate branch of law. From the dogmatic perspective, its permanent element are group insurance contracts. However, the results of a comparative law research allow to draw the conclusion that in a substantial number of legal systems the term “group insurance” is not to be found in normative acts. In the literature, multiple attempts were made to expound the legal nature of the group insurance contract. Still, there is no consensus as to the nature of the legal relationship arising from conclusion of a group insurance contract. The article concerns the proposal of normative regulation of group insurance contract.

Retention of title as a security on tangible assets is well known in many legal systems. It enables to strengthen the position of the seller in such a contract of sale in which the payment of the price is agreed to be done later than the handing over the good. This instrument disturbs the traditional model of sale in two ways. Firstly, the conclusion of the contract is not directly followed — which takes usually place — by the performance of the obligation to transfer the property. Secondly, the right of property receives in that way a new role to play — it becomes a security right, guarantying the pecuniary claim of the seller and ceases the function of the principal right.

In order to find the law applicable to the retention of title, its different aspects — contractual and real — should be qualified according to their nature. These aspects should be treated separately and be assessed according to the proper legal system. For example, the law applicable to contractual assets of retention of title defines if such belated transfer of ownership affects any general rights and obligations of parties, such as the right to receive benefits from the asset or to bear costs of its maintenance. On the other hand, the law of actual location of the asset as a law applicable to real aspects of the retention of title defines the nature of the element disturbing the transfer of ownership and the scope of rights of the seller towards charged good as its owner.

The goal of the study is to briefly present the work on the reform of investment arbitration under the auspices of the United Nations Commission on International Trade Law (UNCITRAL) and to indicate the directions in which further discussion on this reform could potentially go. The Commission entrusted to Working Group III to work on the reform of international investment dispute resolution mechanisms. The ongoing debate in this area has met with very little interest in Polish literature. It is surprising since its outcome may have an impact on future investment policy also in Poland. The work is divided into five parts. The first part presents the scope of the work and the research methodology. The second one presents a very concise historical background for the establishment of investment arbitration, taking into account the key features underlying current crisis of this institution. The third part briefly outlines the course of work of UNCITRAL Working Group III. This section provides a background to show how negotiations are progressing, what major obstacles negotiators are facing and what the future direction of the Working Group’s work might be. These issues are discussed in the fourth part of the study. Author’s opinion on anticipated development of further discussion is presented in the closing remarks.

The Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 introduced several changes to the Directive 96/71/EC on the posting of workers in the framework of the provision of services, affecting the posted worker’s employment relationships directly. Article 3(1) of the Directive 96/71/EC requires that an employer has to guarantee his workers posted to the Member State, the terms and conditions of employment, in matters listed in it, resulting from the law where the work is carried out, regardless of the law applicable to employment relationships. First of all, the Directive (EU) 2018/957 introduced the new concept of “remuneration” paid to the posted workers. Secondly, it extended the list of mattes in article 3(1) by adding point (h) — “the conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work” and point (i) — “allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.” Finally, the Directive (EU) 2018/957 established the posting period, not clearly defined before, which should not last longer than 12 months (18 months when the service provider submits a motivated notification).
This paper analyses the main changes introduced by the Directive (EU) 2018/957 amending the Directive 96/71/EC in the employment relationship field.

The commentary presents an analysis of a thesis presented by the Court of Justice of the European Union in Judgment of 23rd of May 2018. The question referred to the Court in case C-658/17 WB concerned legal definition of a ‚court’ and legal classification of the national deed of certification of succession under the provisions of Regulation
(EU) No 650/2012. The Judgment states that notary in Poland that draw up a deed of certificate of succession at the unanimous request of all the parties, does not constitute a ‚court’ within the meaning of that provision. Subsequently, a deed drawn up by such authority does not constitute a ‘decision’ within the meaning of that provision. The Judgment is particularly relevant since its impact extends to national certificates of succession issued by notaries in other countries, that are part of the Latin part notary system. In conclusion it is indicated, that the Judgment rendered by Tribunal, although highly rightful, relates to merely one of numerous issues concerning use of authentic documents in cross-border succession cases.

In cases C-512/17 and C-393/18 PPU, the national courts raised doubts as to the significance of the circumstances that should be taken into account in determining the habitual residence of a child. In particular the issue was whether the child’s physical presence is a prerequisite in order to recognize that a child has his habitual residence
in the country concerned. In its judgment of 17 October 2018, the Court of Justice found that a child must be physically present in a Member State in order to be regarded as habitually resident in that Member State. The parent’s intention cannot be assigned a decisive role. The arguments in this respect are consistent with the interpretation of the concept of habitual residence laid out in the earlier judgment of 28 June 2018, in which the Court of Justice connected the habitual residence of the child with the place where the centre of that child’s life is actually situated, and not with the place where the child would have lived in accordance with the plans of one of the parents. The Court’s interpretation can be attributed to the so-called combined model of determining a habitual residence by looking for child’s centre of interest, taking into account a number of circumstances, including the intention of parents with parental responsibility. Physical presence has rightly been recognized as a necessary condition for establishing jurisdiction under Regulation No 2201/2003 based on habitual residence.

Tłumaczenie z języka japońskiego (przy pomocniczym użyciu urzędowego japońskiego tłumaczenia ustawy na język angielski).

Konsultacja merytoryczna: dr hab. Paweł Czubik, prof. UEK.