New Private International Law
The new Private International Law went into force in Poland on 16 May 2011, replacing the old law from 1965.
The rules set forth in the Private International Law resolve choice-of-law issues in legal relationships affecting more than one country. The new law is designed to fill certain gaps under the 1965 law and to harmonise Polish law with EU law, particularly under the Rome I Regulation (593/2008) for contractual obligations and the Rome II Regulation (864/2007) for non-contractual obligations, which pre-empt national law.
In the new act, citizenship plays a crucial role with respect to personal law, family law and inheritance. Additionally, when determining applicable law, the act provides for consideration of an individual’s “habitual residence,” alongside the criteria of citizenship and domicile.
Provisions concerning legal persons have also been expanded. Matters related to the existence and functioning of a legal person are determined by the law of the place where it has its registered office, but a reference may also be made to the law of the place where the legal person was established. The act also governs issues related to moving the registered office of a legal person to a different country (Art.17).
The law expands provisions concerning the form of legal acts, providing that where an agreement is concluded by persons in different countries, the agreement will be valid if the form complies with the requirements of the law of either one of the countries (Art. 25(1)).
With respect to the law governing contractual regulations, the act calls for application of the Rome I Regulation (Art. 28(1)).
The act contains a reference to the Rome II Regulation as well (Art. 33), while also governing issues excluded from the application of Rome II (e.g. non-contractual obligations arising out of violation of personal interests, or tort liability for acts or omissions of public authorities).
In matters related to arbitration, the parties may choose the law governing the arbitration agreement. Failing such choice, the agreement will be governed by the law of the state of the place of arbitration agreed by the parties, or, failing such agreement, the law applicable to the legal relationship in dispute. For the arbitration agreement to be effective, however, it is sufficient if it is effective under the law of the state in which the proceeding is conducted or in which the arbitration court has issued an award.
Property matters are governed by the law of the place where the property is located (Art. 41). However, separate rules are provided for rights to certain vehicles, goods in transport, rights registered in a securities clearinghouse system, and recovery of cultural artefacts removed to another country. In the latter case, the rules are designed to expand the legal options of persons seeking protection of cultural artefacts.
There is also a new regulation concerning intellectual property rights (Art. 46), using the criterion of the place where the right is exercised. With respect to protection of IP rights, the applicable law will be the law under which protection is sought.
Between spouses, the law now authorises them to make a choice of the law governing their property matters or a marital property agreement between them (Art. 52(1) and (2)). The law governs protection of third parties entering into contractual relations with a spouse (Art. 53(1)). In cases of separation and divorce, the rule is application of the law of the country of common citizenship of the spouses (Art. 54(1)).
Regulations concerning adoption govern the law applicable in the case of joint adoption by spouses who are not both citizens of the same country. In such case the law of the place where both spouses are domiciled, if any, will apply, or else the law of the country in which both spouses have their habitual place of residence or the law of the country with which both spouses have the closest connection (Art. 57(2)).
With respect to maintenance obligations (e.g. spousal and child support), the law contains a reference (Art. 63) to Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. (In this respect, the new law does not go into effect until 17 June 2011.)
Finally, the act changes the criterion for determining the law governing inheritance. As before, the default rule is that inheritance is governed by the law of the country of the decedent’s citizenship at the time of death (Art. 64(2)). However, under the new rules, a testator may instead provide for the applicable law in his or her will, which may be based on citizenship, domicile or habitual residence at the time the will is made or at the time of death (Art. 64(1)).
Barbara Majewska, intern in the Environmental Law practice at Wardyński & Partners