Preliminary agreements play an important role in the practice of both state and international trade. These are agreements in which one of the parties or both parties commit to conclude any other agreement named a final agreement. According to a prevailing opinion in Poland a preliminary agreement may oblige to conclude not only an obligation agreement but also other agreements (e.g. inheritance division agreement). Establishing the law applicable for a preliminary agreement shall take place in accordance with the instructions arising from Rome I Regulation. Under Article 3 of the Regulation the law applicable shall be chosen by the parties to the preliminary agreement. If the law applicable has not been chosen, it shall be determined pursuant to Article 4, Paragraphs —4 of the Regulation. Article 4, Paragraph 2 shall be applied while determining the law applicable for a preliminary unilaterally obliging agreement. Under the paragraph, the law applicable shall be the law of the country where the party obliged to conclude the preliminary agreement has his habitual residence. The result may be corrected under Article 4, Paragraph 3 of the Regulation. In search of the law applicable for a preliminary bilaterally binding agreement Article 4, Paragraph 4 of the Regulation shall apply. We shall search for the law of the country with which the preliminary contract, considering all other circumstances, is most closely connected. Admissibility of the preliminary contract shall be assessed by the law applicable to it. However, admissibility of preceding a specific agreement by a preliminary agreement shall be assessed in accordance with the law applicable for the future agreement (final agreement).

In any country, the courts apply, first and foremost, their own conflict of law rules. There are, however, exceptions to this principle. They can be found in the rules related to renvoi and the conditional application of the legis rei sitae. Another exception results out of the solutions adopted for the purposes of managing the preliminary question in private international law. In the Act of 2011, the Polish legislator has limited the use of renvoi. In Article 5 of the Act, it permitted only the remission (sending back to the law of the forum court), while the transmission (renvoi to the law of a third state) is allowed only with respect to the law applicable to legal persons (Article 17(2)). During the final phase of deliberations of the draft Act of 2011, the legislator has rejected the proposal to include the “accepted” transmission type of renvoi. The Act of 1926, with respect to the relationships between spouses and between parents and children, provided for the application of the law where the immovable property was located, however, subject to conflict of law rules of the state where the immovable property was located (conditional application of lex rei sitae). This was heavily criticized by Kazimierz Przybyłowski. Consequently, a similar rule was not adopted in the Act of 1965, nor in the new law of 2011, and rightly so. Both in Poland and elsewhere, there are disputes as methods to be used in order to determine the law applicable to the preliminary question. It has been proposed to:
a) apply the law determined in accordance with the conflict of law rule of the forum court that governs the issue in question, b) apply the law determined in accordance with the conflict of law rule of the law applicable to the main question, c) to determine the law applicable to the preliminary question flexibly, depending upon the circumstances of the given case (and thus apply the first or second method flexibly). The third method is recommended. However, in determining the law applicable to the factual state of affairs that has fully came to a close, where only a small part of facts constitute the main question, one should apply the conflict of law rules of the country, with which the given state of affairs has — from the beginning until the end — been most closely connected.

The article examines the private international law consequences of the increasing role of the public law regulation, which it plays in international cases. In that context, the paper looks at the concept of the overriding mandatory rules as accepted also in the Polish private international law, as well as at the regulation of Article 6(1) of the Act on Private International Law of 2011. According to that rule: „The applicable law, determined in accordance with the provisions of this act, encompasses the rules of public law, if they should be applied under the applicable law to a given legal relationship”. This means that the legal system determined as applicable by the Polish conflict of laws rule, whether domestic or foreign, should be applied as a whole, including its public law rules. It is the law applicable itself that determines whether a given rule of public law should be applied. The public nature of the rule in question does not preclude its application. The judge at the forum does not have a competence to manipulate the applicable law by a priori categorizing the rules of law to the realm of public law and for that reason refuse their application. This, however, does not mean that all the public law rules of the applicable law will be applied. Their application depends foremost on their own „intent to apply”, which means that their rationae materiae and rationae personae scope of application covers the given factual situation, because of a certain connection with the territory of the given state. Moreover, the competences of the authority are relevant. The court at the forum cannot assume competences of the public authority of the state, the law of which is applicable. As a consequence, the court is, inter alia, bound by the sanction provided in the applicable law, and must apply it, provided that it remains in its competences. It cannot, however, exercise public powers over the parties to the disputed legal relationship. In case there is a conflict between foreign public law and the forum’s domestic public law, in principle the latter has priority.

This article is an attempt to highlight some legal questions connected with the concept of international mandatory rules. This legal concept, known also as overriding mandatory provisions, loi de police, Eingriffsnormen, is defined in Article 9 sec. 1 of EU Rome I regulation as provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organization, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation. This article is an attempt to isolate and distinguish international mandatory rules from other norms of imperative character. ‘Public interest’ has been determined to be differentiating factor of decisive importance. In second part of the text international mandatory rules are confronted with mandatory requirements of public interest (as understood by doctrine of European Union law and case law of Court of Justice of European Union) and special rules imposing restrictions concerning or affecting the succession in respect of certain assets enshrined in art. 30 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 a European Certificate of Succession. Finally a particular problem of conformity of Article 359 § 23 of Polish Civil Code with Article 9 sec. 1 Rome I is discussed.

This paper discusses the closest connection as a relationship resembling the function in mathematics. Firstly, it is the relationship between a legal issue ant the law applicable to that issue. Secondly, the closest connection determines also the way, how legal issues are defined. It means, that the closest connection constitutes relationship between the factual matrix of the case and the legal issues resulting thereof. Thirdly, the appropriate provisions of the applicable law are also determined on the basis of the closest connection. Accordingly, the case should be decided by these rules of the applicable law, which cover the factual matrix of that case with their scope of application, notwithstanding the qualification assumed by the applicable law. In this way the rules, which have the closest connection to the case will come into operation. In the nutshell, the closest connection joins factual and legal elements. Another problem discussed in this paper is the attempt of description of the closest connection. It has been done by the analysis of the interplay of the four fundamental principles of the private international law: the closest connection, predictability, party autonomy and the protection of the weaker party. It has been shown, that the closest connection is always a starting point, however usually not the final goal of the private international law.

Report from the 2nd Congress of Private International Law Departments in Katowice (2015). The main theme was the creation, interpretation, and application of conflict-of-laws rules in European and national private international law. Discussions covered the relationship between EU and national law, the influence of EU law on general PIL principles, connecting factors, conflict-of-laws aspects of obligations, and family law. The congress brought together academics and practitioners.