Umowa gwarancji w prawie prywatnym międzynarodowym

Abstract

A guarantee (particularly a bank guarantee) is commonly utilized in international trade as a personal security for a claim. Many practical matters connected with its use have been regulated in the Uniform Rules for Demand Guarantees (last version is from 2010) prepared by the International Chamber of Commerce in Paris. These rules are frequently applied in professional, commercial trade and they also indirectly indicate the proper law for matters, which they do not regulate. In other cases it is necessary to establish the law proper for guarantees. Currently this is most often done on the basis of the Rome I Regulation. In Poland, the proper law concerning the capability of parties to conclude a guarantee agreement is determined by the Private International Law Act 2011. According to the Rome I Regulation it is possible to choose a proper law for guarantee agreements. If no choice was made, it is generally the law of the country of guarantor’s habitual residence. If, however, the guarantee is more closely connected with the law of a different country, that law is to be applied. Regardless of the proper law for the guarantee it is also necessary to determine the proper law for other legal issues which appear in the background of the guarantee, e.g. confirmation of guarantee, counter‑guarantee, indirect guarantee. The proper law for the guarantee determines the admissibility, content and legal nature of the agreement. It also determines the admissibility of assigning the rights derived from such an agreement and the expiry of the legal relation created by the guarantee agreement.