Language:
PL
| Published:
31-12-2016
|
Abstract
| pp. 7-33
Subject matter of the analysis are the so called personal connecting factors for natural persons in the choice of law, which in particular stands for the criteria of nationality, domicile, and habitual residence. Choosing one of them as the basis for the designation of the law applicable to issues of the personal status, family law, or the law of successions has been discussed since the moment of the very birth of the modern conflict of laws. The paper compares the most important characteristics of personal connecting factors, taking into consideration a general evaluation of their location within the framework of the Polish conflict‑of‑law provisions. Every solution in this field has its advantages and disadvantages, so that it is not possible a priori to say that the domination of a particular criterion is better than any other. At the same time the nationality connecting factor in its pure, objective form is gradually eliminated from both the European and international rules on the conflict of laws. Admittedly, such a trend not necessarily is a guidance for the Polish lawgiver, yet it will surely have some influence on the content of the future amendments to the Law of 4 February 2011 on the Private International Law. The author criticizes a solution consisting in using both domicile and habitual residence as subsidiary personal connecting factors, whereas this role should be assigned only to the latter. New prospects of a wider use of habitual residence not only in the private international law, but also the substantive law have been opened up recently. The answer to the challenges of the contemporary international commerce is not looking for the mystic “Sorcerer’s stone” in the form of an ideal choice‑of‑law connection but rather a skillful mixture of various methods of designating and applying the appropriate rules of law, including among others a wider use of the parties’ autonomy in the field of the choice of law.
Language:
PL
| Published:
31-12-2016
|
Abstract
| pp. 35-63
In the national jurisdictions determination of the law applicable to the legal persons is based on various connecting factors. Up till now the national conflict‑of‑law‑rules on the legal persons applicable in the UE member states haven’t been unified or harmonised by the secondary EU law. Either the freedom of establishment, as set out in the Treaty on the Functioning of the European Union, requires the application of the specific connecting factor for the determination for the law governing legal persons. Especially, it doesn’t exclude the application of the real seat theory by national jurisdictions as such. The Polish act on private international law with its seat connecting factor is traditionally based on the real seat theory. The real seat is in general the place where the legal person conducts the administration of its interests on a regular basis and which is ascertainable by third parties. In this subject the Polish regulation is compatible with the fundamental principles of the classic private international law and practically meets the requirements of the freedom of establishment guaranteed by the Treaty on the Functioning of the European Union.
Language:
PL
| Published:
31-12-2016
|
Abstract
| pp. 65-87
The Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of an European Certificate of Succession introduces the principle of uniformity of the statute of succession. This principle should ensure in advance that the succession is governed by a predictable law with which it is closely connected. For reasons of legal certainty and in order to avoid the fragmentation of the succession, that law should govern the succession as a whole, that is to say, all of the property forming part of the estate, irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third State. The purpose of this article is to discuss some exceptions to the above mentioned principle of uniformity and to assess whether the principle of uniformity of the statute of succession provided for in the regulation can actually be implemented effectively.
Language:
PL
| Published:
31-12-2016
|
Abstract
| pp. 89-109
In many countries in the world, corporate arbitration is considered as an effective way of solving the “corporate disputes”, in particular those regarding challenging of the shareholders’ resolutions. In Poland, as a result of faulty regulation of both art. 1157 and art. 1163 of Polish Code of Civil Procedure, the objective arbitrability of such disputes is highly questionable and therefore subject to numerous controversies in the legal doctrine. Attempts to find the answer to the question of the existence and potential scope of the arbitration in cases of appealing the resolutions of the meetings of the capital companies require an in-depth legal analysis, a thorough assessment of the material nature of corporate disputes and the general reconstruction of the terms of arbitrability. It is worth pointing out both the legal obstacles to the recognition of arbitrability of resolutions on the one hand, and on the other one, the systemic and functional arguments in favor of arbitration in this legal field (especially the controversial idea that the article 1163 of the CCP shall in fact serve as lex specialis in relation to the Article 1157 of the CCP).
Language:
PL
| Published:
31-12-2016
|
Abstract
| pp. 111-124
The article analyzes contemporary marriage and inheritance law in the Oriental world, primarily based on Sharia. It discusses key institutions such as the marriage contract, the bridal gift (mahr), the wife's duty of obedience and maintenance, separation of property, and the principles of divorce (talâq) and inheritance. It highlights the codification of family law in many countries and new trends, e.g., regarding property regimes or mahr indexation.
Language:
PL
| Published:
31-12-2016
|
Abstract
| pp. 125-135
The decision by the District Court in Gorzów Wlkp. refers a question to the CJEU concerning the interpretation of Art. 1(2)(k), 1(2)(l), and Art. 31 of EU Regulation No 650/2012. The case arises from a refusal to notarize a will containing a legatum per vindicationem (legacy with direct real effect, under the chosen Polish succession law ) concerning real estate located in Germany. German property law does not recognize legacies producing a direct real effect. The court asks if the Regulation allows refusing recognition of such real effects.