Prior to the 20th century, the codification of private international law in China progressed in very slow pace, even though the earliest conflict rule already emerged in the Tang Code of 651. The promulgating of the Statute on the Application of Law on August 5, 1918 marked the birth of China’s modern private international law. Since the reform and open‑door policy was initiated in 1978, the codification of private international law in China has been entering into a stage of rapid and great improvement. A series of choice‑of‑law rules have been laid down in some domestic legislations, such as the General Principles of the Civil Law of 1986, the Maritime Act of 1992, the Civil Aviation Act of 1995, etc., and a lot of related judicial interpretations. However, the non‑systematic, incomplete, lacking conformity and unscientific provisions in the existing legislations cannot meet the practical needs. With the unremitting efforts of Chinese legislature and scholars of private international law over 20 years, the Act of the PRC on the Application of Laws in Foreign‑Related Civil Relations (PIL‑Act) was adopted on October 28, 2010. This Act contains 8 chapters and 52 articles, and reflects, both in style and in specific rules, many outstanding features, e.g. the expansion of the scope of party autonomy, habitual residence used as main connecting point in determining lex personalis, increased flexibility in application of laws. Meanwhile, there are some shortcomings in the PIL‑Act which should be improved through the judicial interpretations and subsequent legislative amendments in the future.

Although there should be no doubts that under Article 4 CISG the set‑off is covered by the relevant scope of Vienna Convention, we should bear in mind that the Convention itself does not contain any specific rules governing this institution. Several attempts were undertaken by scholars and judicature in order to deal with this gap. Many have referred to general principles of European uniform law. This has not allowed for a conclusive and satisfactory result. The opinions expressed so far have not facilitated answers to questions such as relating to the criteria of admissibility, legal nature, specific modes and effects of the set‑off of claims resulting from a contract of international sale of goods. Due to the lack of specific rules under the Convention, these issues shall be determined according to the relevant domestic legal system, determined by the conflict law rules of the forum. Polish court should thus apply the rule expressed in Article 17 of the Rome I Regulation (Regulation No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations) and subsequently evaluate the admissibility of the set‑off under the domestic legal system relevant for a claim against which the right to set‑off is asserted (the so called main or passive claim).

The development of the European Private International Law — the supranational conflicts law of an international organization with the integration purposes — is an event without any precedent. The real significance of the process of unification of the PIL rules in Europe far exceeds the mere regulation of the spatial conflicts of laws. It seeks to establish a legal area based on the idea of the “sovereignty of an individual”, referring to Locke’s and Kant’s philosophy. The legislative activity of the European Union may recall some of the processes that accompanied the birth of the modern nationstates: the private law unification had for the latter an important symbolic dimension and meant building ties between the authorities and the commonwealth of citizens, no less important than the creation of a sovereign power equipped with an amount of competencies defined by public law. The article highlights and discusses several important elements evidencing the importance of the process of the unification of Private International Law for the further federalization of the EU. Firstly, the author devoted his attention to the constitutional dimension of the PIL unification and the gradual transfer of legislative and treaty‑making powers from the Member States up to the level of the Community institutions. Secondly, the shrinking importance of the principle of nationality in the light of the European law of conflict of laws has been remarked; application of the lex patriae does not support building the European identity of the EU citizens and may be contrary to the fundamental freedoms. Thirdly, the potential significance of the doctrine of “mutual recognition of the legal relationships”, which reminds the country of origin principle known from the ECJ previous jurisprudence, tends to undermine the usage of the method of conflict of laws in the intra‑EU commerce. One should expect that the desire for closer integration between the European societies through such means as the private international law will induce the resistance of the Member States for which maintaining the impact on the civil‑law relationships of their own nationals is a matter of preserving their self‑identity and sovereignty.

The paper deals with a concept of the fundamental breach of contract under the CISG. The prerequisites of the fundamental breach, as stipulated in Article 25 CISG, are discussed. Moreover, more generally, the institution is dealt with as a ground to avoid a contract under Article 49 CISG. The author concludes that the fundamental breach of contract occurs only in extraordinary circumstances — when as a result of the breach, the affected party loses its interest in further performance of a contract. Violation of the affected party’s reasonable expectations is the primary factor in ascertaining whether the fundamental breach occurred or not. The fundamental breach of contract is foremost determined by the result of a breach coupled with the affected party’s expectations, and not by the type of the contractual obligation violated by the defaulting party. Thus, under Article 25 CISG, it is irrelevant whether there was a breach of primary or ancillary obligation under the contract. However, while the fundamental breach of contract is generally related to the affected party’s expectations, it should be underlined that only the expectations which the affected party is entitled to rely upon under the contract are protected (in determining its scope one must also take into account Articles 7—9 CISG). In the second part of the paper, the author provides an overview of Article 25 CISG related case law from arbitration tribunals and state courts from various countries. The overview will be helpful for the reader in order to understand the application of the concept of the fundamental breach of contract under CISG in most typical cases.

The article focuses on the issue of application of the most favoured nation (MFN) treatment to the dispute settlement mechanisms included in investment treaties. The analysis is made in the light of two recent, contradictory decisions issued in Hochtief v. Argentina and Daimler v. Argentina cases. The article consists of two major parts. The first one starts with explaining the particular nature of the agreement to arbitrate present in investment arbitration based on international treaties. It then proceeds to describe the MFN treatment using the example of Article 3 of the Bilateral Investment Treaty (BIT) between Argentina — Germany, identifying its basic elements. Subsequently, the analysis turns to the issue of the application of the MFN clause to the dispute settlement mechanisms included in BITs. It focuses on decisions of the arbitral tribunals rendered up to date, which considered this issue. The authors then identify that the presence of third parties is a standard feature in investment arbitration (as the investors are not parties to the BITs which are concluded between states). Nevertheless the application of the MFN clauses to dispute settlement mechanisms results in an even more convoluted situation — the presence of “fourth” parties to the legal relation between the states — parties to the BITs (i.e. investors invoking the MFN clause in the underlying BIT to invoke the dispute resolution mechanism of another BIT). The second part of the article is a case study. It contains the analysis of the application of the MFN clause to the dispute settlement mechanisms at the example of the BIT Argentina — Germany (on which the contradictory decisions in Hochtief v. Argentina and Daimler v. Argentina were based). It focuses on the question whether the MFN clause included in art. 3 of the BIT Argentina — Germany can be invoked to avoid application of the eighteen months requirement included in art. 10 of that BIT. This part of the article starts with the distinction between jurisdiction and admissibility and its relevance in the context of investment arbitration. Then it turns to the analysis of the elements of the MFN clause at the chosen example: (i) treatment, (ii) in the territory of the host state, (iii) less favourable, (iv) than accorded to investments or investors from a third state, (v) in like circumstances. The conclusion is that there are arguments “for” and “against” the application of the MFN clause to dispute settlement mechanisms. Given the variety of BITs currently in force the final answer must be always based on the wording of particular provisions of the applicable BIT. The crucial point is whether the provision circumvented by resorting to the MFN clause is a condition to a host state’s consent, and thus an element of jurisdiction of the tribunal, or a procedural requirement, and thus an element of the admissibility of the claim. This, again, depends on the wording of the applicable investment treaty, as well as on the circumstances of a particular case. In case of the analysed Article 3 BIT Argentina — Germany the authors are of the opinion that the eighteen months requirement is part of the states’ consent to arbitrate. Thus, it is a jurisdictional element which means that under this particular BIT, the MFN clause cannot be relied on in order to avoid application of the eighteen months requirement.

Rome II Regulation of 11 July 2007 contains the conflict of laws rules relating to the non‑contractual obligations such as torts, unjust enrichment, negotiorum gestio, culpa in contrahendo and product liability. Recently, the Commission has commenced consultations regarding the practical application of these rules, in relation to its obligation to submit a report pursuant to Article 30 of the Regulation. The Commission seeks the view of the Member States in order to consider modification and suggestions for future. The present work constitutes a response to the Commission’s Questionnaire prepared jointly by a group of authors under a lead of professor Maksymilian Pazdan. The response constituted the basis for the reply given by Polish Codification Committee on behalf of the Polish government. There were some general and several specific questions posed by the Commission in the Questionnaire. They are dealt with in the response. Some of the most important suggestions are summarized below. The Polish doctrine generally approves of the Regulation and the rules provided therein. Nevertheless, there are certain solutions that could be improved and gaps that could be filled out. The following recommendations are made in the response: First, a time has come to create not only specific (as it is the case so far) but also general uniform rules of private international law at the European level. Second, the rules contained in Regulation Rome II should apply to matters covered by the 1971 Hague Traffic Accidents Convention. Third, the conflict rules with respect to the violation of privacy and rights relating to personality should be added to Rome II, since this constitutes a considerable gap in the European regime.