Chapter I: Relation between choice-of-law rule resulting from international convention and statutory choice-of-law rule

 

The analsis of the application of choice-of-law rules resulting from an international convention demands to define their relation to statutory choice-of-law rules, what in turn makes necessary to discuss the position of international treaties in Polish legal order. Polish Constitution of April 2, 1997 prescribes that an international convention in order to be a binding source of law needs to be ratified and published in the Official Journal of the Republic of Poland. Accordingly, the sole entry into force of a treaty in respect of Poland is insufficient to make it a source of Polish legal order.

The rules laid down in the Chapter III of the Polish Constitution make redundant provisions of domestic law that invoke international conventions. Moreover, such provisions are often improperly phrased. They cannot confer binding force of law on international agreements which have not been ratified or published. That would be in contravention of exhaustive catalogue of sources of law established by the Article 87 of the Polish Constitution. Accordingly, only in case of ratified and officially published international convention its scope of application can be broadened by the domestic law. In that way an international treaty would be incorporated into an act of a domestic law that invokes it, and gains a status of the latter. It equals the situation, where the national legislation copied provisions of international convention into the act that has been promulgated.

The mere fact, that an international treaty has entered into force and co-creates Polish legal order is not enough to its direct application. It is essential for treaty provisions to be precise, detailed and complete sufficiently to derive legal rules from them. It means that the wording of international convention constitutes it self-executing character or makes necessary to legislate in order to allow courts to apply it. International conventions from the field of private international law are written in the same manner as domestic laws, what enables to derive choice-of-law rules from them.

In Polish legal system, choice-of-law rules resulting from an international treaty are to be applied ex officio. Parties are neither charged to invoke them, not to prove the content of a foreign law they designate. Improper application or omission of an international convention whilst adjudicating equals abuse of domestic laws. However one shall distinguish between ex officio application of an international treaty and the question whether it establishes ius cogens or ius dispositivum.

If two choice-of-law rules are applicable to the same situation: one resulting from international convention, second from domestic law, the former shall take priority over the latter, regardless of its content. It is entirely different in case of the choice-of-law rules derived from two international treaties not having precedence one over the other. If they designate the same domestic law as applicable, they constitute a cumulative legal ground for a conflict of laws solution.

International conventions establish uniform choice-of-law rules, that shall be applied in two or more contracting states. They can have unlimited scope of application (universal choice-of-law rules), if they designate applicable law in all cases of same kind to be dealt with by the courts of a party to a treaty. That is why law specified by virtue of them shall be applied whether or not it is the law of a contracting state. On the other hand international conventions can establish choice-of-law rules having scope of application confined to the cases sufficiently connected with two of contracting states. Such limitation is typical for bilateral conventions, though it results form the sole applicability of a contracting state’s law rather than from the wording of hypothesis of treaty provisions. Accordingly, they have a "bilateral" character, though they cover plainly such limited scope of application.

At the beginning multilateral conventions established only choice-of-law rules limited to cases connected with two of contracting states, and so designating only the law of one of them as applicable (multilateral rules). The emerging of universal choice-of-law rules (which could be called "full-lateral rules") meant breaking with reciprocity and constituted great leap towards uniformity of court decisions in the field of conflict of laws. It is so because universal (or full-lateral) choice-of-law rules exclude domestic choice-of-law rules, whilst establishing bilateral or multilateral choice-of-laws rules leads to the proliferation of the norms in force.

Choice-of-law rules resulting from international conventions fulfil the same basic functions as the rules of a domestic law. They can serve to attach particular situation to the legal system with whom it has the closest connexion or to achieve determined goal in the field of internal law.

However one can indicate additional and particular function of choice-of-law rules resulting form international conventions, as they aim at the uniformity of conflict of laws solutions. The desire to achieve such uniformity was the reason to conclude international treaties in the field of private international law. Therefore this factor is decisive for the proper interpretation and application of those treaties.

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