Stosowanie obcych norm kolizyjnych

Abstract

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.