Connecting Factors (PIL)
by Kurt Siehr
1. Notion and function
Connection is a special term of private international law (PIL). It has equivalents in other languages where it is called rattachement or connexion, Anknüpfung, collegamento, aanknoping, conexão, conexión. A legal question (eg maintenance obligations) is connected to a connecting factor (eg habitual residence of a person) to decide which law governs the maintenance obligations. By connecting the case with a certain personal, local or stipulated connecting factor given at a certain time, the applicable law is fixed. However, the term connection is also used in international civil procedure when a head of jurisdiction is connected with such factors as domicile, place of performance, or the place of acting in tort cases. In civil procedure, such connection is less problematic than in PIL.
2. Connecting factors
Connection is made by use of a connecting factor (facteur ou catégorie de rattachement, Anknüpfungsfaktor, criterio di collegamento, elemento de conexão, punto de conexión), which is normally either personal or local. The personal connecting factors are nationality or membership in a local, religious or ethnic community. The local or territorial connecting factors are domicile, seat, habitual residence, the place of acting (locus actus or locus delicti commissi), the place where an object is located (locus rei sitae) and the place of procedure (forum). These connecting factors are not relevant where there has been a choice of law by the parties because in this case, the applicable law is chosen and, apart from cases where the parties are limited in their choice of law, the chosen law need not have any personal or local connection to the subject matter, eg the contract.
3. Connected person
In many conflicts rules it must be indicated which person is important for any connection: the husband, the wife, the spouses, the tortfeasor or the victim of a tort or the defendant and not the plaintiff.
4. Time of connection
In order to determine the applicable law, it is necessary to know at what time the connection has to be made, eg the habitual residence of the spouses at the time of the celebration of marriage (eg for the requirements of marriage), at the time in respect to a given event (eg for maintenance) or at the time of death (eg for estate cases). From this it is easy to see that there are two different connections as to time: an immutable connection to a factor at a certain time, and a mutable connection to a factor at the time in respect to a given event.
a) If a connection has been made immutably, any later change of the connecting factor (eg the habitual residence or nationality) is of no importance. There will be no change of the governing law. A contract, for example, is connected at the time at contracting—if there is no choice of law—with the habitual residence of the person who is obliged to render the characteristic performance. If that person later changes habitual residence, this change does not alter the validly concluded contract. This can happen only if both parties together make a new choice of law with respect to the same obligations.
b) If a connection is mutable, connection is made with respect to a given event. This happens especially with regard to non-contractual long-term obligations under the law of marriage and the law of parent and child. An example is Art 3(2) of the Hague Protocol on the Law Applicable to Maintenance Obligations of 2007. According to this article, if there is a change in the habitual residence of the creditor, the internal law of the new habitual residence shall apply from the moment the change occurs.
Some legal systems are not unitary. They may have different rules for different territorial parts of the country or for different groups of people. If such a system is applicable, there must be a sub-connection in order to decide which territorial or personal law governs. It is primarily the task of the governing law to designate by inter-local and interpersonal law the applicable regional or personal law. This is done by the Hague Conventions (eg Arts 46(a) and 47(a) of the Hague Convention of 2000 on the International Protection of Adults) and by national PIL statutes (eg Art 4(3) s 1 EGBGB; Art 18(1) Italian PIL Statute). If such a provision of the designated foreign law is missing, the forum itself has to make the choice according to the principle of closest connection. Accordingly, that regional or personal law of the governing law with the closest connection with the issue concerned would be applicable (eg Art 47(b) of the Hague Convention of 2000 on the International Protection of Adults; Art 4(3) s 2 EGBGB; Art 18(2) Italian PIL Statute). A third method to overcome a regional splitting of the governing law is applied by Art 22(1) Rome I Regulation 593/2008. According to this article, where a country has more than one territorial unit with its own rule of law for contractual obligations, each territory is treated as a separate country for the purposes of determining the applicable law.
6. Kinds of connection
Connection may be made quite differently. In most cases it is simple. In other cases, however, the connection may be precise or abstractly general; primary or subsidiary; alternative or cumulative; singular or ubiquitous; subject to party disposition or mandatory; autonomous or accessory; mutable or immutable (see 4. above); objective or subjective; or personal or local (see 2. above).
a) A precise and not abstractly general connection is found in most cases. The connecting factor (eg habitual residence of a person or the location of goods) is clearly specified and the applicable law is not to be fixed by an abstractly general factor such as the place of the closest connection (les liens plus étroits, engste Verbindung, collegamento piu stretto, nauwste verbondenheid, vinculos más estrechos). Such an abstractly general connection is only used in three instances: (1) as a general rule of PIL to be specified by particular conflict rules (eg § 1(1) Austrian PIL Statute as a general rule of PIL; Art 117(1) Swiss PIL Statute for the law governing contracts); (2) as a subsidiarily applicable rule (eg Art 4(2) s 2 Rome I Regulation); and (3) as either a general evasion clause (Art 15(1) Swiss PIL Statute) or a special evasion clause for certain specific purposes (eg Art 4(3) Rome II Regulation 864/2007).
b) Most connections are primary ones and do not work subsidiarily. The applicable law is determined once and forever and requires that the primary connection lead to an acceptable result; an unacceptable result, in contrast, is the requirement that triggers a subsidiary connection.
c) There are alternative and cumulative connections. Alternative connections are chosen by the legislature or by courts if they want to favour a certain result. This is the case with the favor negotii (eg Art 10(1) Rome I Regulation). In order to favour the formal validity of a contract, the formalities are governed either by the law of the place where it had been stipulated (lex loci actus) or by the law governing the contract (lex causae). A cumulative connection is rarely seen. This is the case if a legal problem has to be answered positively by two or more legal systems. In former times, it could be seen in the English rule on international tort actions with the case Phillips v Eyre (1870) establishing the double actionability rule, a rule finally abolished for most tort actions in 1995 by ss 9 ff of the Private International Law (Miscellaneous Provisions) Act of 1995. Other examples are still in existence, eg the rule of the weakest law (effects are only recognized if two legal systems acknowledge them) or the Swiss solution of the action for contribution among co-debtors (Art 144(1) Swiss PIL Statute).
There is no cumulative connection if several questions of the same case have to be answered and decided separately. A contract, for example, is valid only if the contract is validly formed according to the lex causae, formalities are met according to the lex loci actus or the lex causae, and the parties are capable of contracting according to their personal law. Such a ‘cumulating’ effect is due to some different ‘partial’ questions (substance, formalities, capacity) of a more comprehensive main question (contract).
d) A connection or a theory may be called ubiquitous if a certain act has effects in more than one place and the legal consequences of the entire act are governed by the applicable law in any of these places (eg Art 5(1) Rome II Regulation) or the legal consequences of certain partial aspects are governed by the law of the place where these partial effects occur (eg Art 8(1) Rome II Regulation).
e) Connecting factors may be open for the disposition of the parties or they may be mandatory. The parties may agree upon the connecting factor if they are allowed to choose one. Such an agreement is possible in the law of contracts, in the law of matrimonial property and in succession cases where the parties may replace the objectively applicable law with a law chosen by the parties. Such a choice may be unrestricted, as in contracts law, or restricted, as in matrimonial property law and succession.
f) A connection is objectively made if it is done without interference of a subjective choice of law by the parties. If such a choice may be made, either by both parties to a contract or unilaterally by the testator, the chosen law substitutes for the law governing objectively.
g) Most connections are made autonomously and designate the applicable law. Such a connection is to be distinguished from a connection made accessorily as, for instance, in Art 5(3) s 2 Rome II Regulation where the law governing tortious liability is governed by the law applicable to the pre-existing relation (contract, association, family) between the parties.
7. Connection and dépeçage
A dépeçage refers to a separate connection of a partial question as, for example, the formalities as distinguished from the validity in substance. In order to favour the validity of contract, formalities are often governed alternatively by the lex loci actus or the lex causae. This policy requires the distinction between formality and substance. This is a question of characterization or qualification, which is regularly made according to principles of comparative law together with inspiration from the law governing the issue. A similar situation may be seen in the law of persons. Capacity is connected separately from the law governing the contract or a similar act. Also here capacity has to be distinguished from the law governing the contract or act.
Previously, there existed in international contract law the distinction between the law governing the conclusion of contract and the law governing the effects of contract (great scission of contract law) and, as to the effect of contract, between the law governing the performance of one party and the law governing the performance by the other party (small scission of contract law). Hence, there were two laws governing the effects of a contract. Today such scission has vanished. Conclusion of contract is governed by the same law as its effects (see eg Art 12 Rome I Regulation).
8. Connection and characterization
Facts have to be adjusted to fit into the conflicts rules. This problem is a matter of interpretation, called characterization in PIL. If, for example, the question of culpa in contrahendo has to be answered by Art 12 Rome II Regulation, the case has to be characterized as extra-contractual because there has been a violation of pre-contractual obligations. This characterization is treated separately.
9. Law applicable to incidental questions
A question is called incidental when, under the applicable substantive law, a preliminary or secondary legal problem arises that must be answered. Normally incidental questions have to be answered by the law applicable to the main problem, ie the lex causae. For instance, if English law governs succession of a person and it consequently has to be decided whether a child adopted in a foreign country (eg the United States) is a ‘child’ who is able to take a share in the estate of the deceased person, there would be no reason to answer this incidental question according to German conflicts rules if the main question (succession) is governed by English law.
A different solution may arise if the incidental question, eg re-marriage of divorced spouses, is answered by the lex causae in a manner that is incompatible with the basic right that divorced spouses may remarry. Here, the incidental question has to be answered independently and re-marriage permitted although the applicable foreign law does not allow re-marriage because it does not recognize the divorce of the spouses.
The result of connecting a case with a connecting factor is the determination of the applicable law. This reference is either made to a legal system including PIL (so-called PIL reference of comprehensive reference) or directly to the substantive law to be applied (so-called reference to substantive law). In both cases, however, the inter-regional and interpersonal law of the applicable law have to be applied as well as the inter-temporal law of this system. Reference is always (also in cases with formerly existing connecting factors) made to the presently existing law, and this law has to decide whether the old or the new version of law applies. With a so-called PIL reference a renvoi has to be observed. If the applicable foreign law cannot be applied at all because it violates public policy, the result of foreign law has to be corrected accordingly.
Wilhelm Wengler, ‘Die Anknüpfung des zwingenden Schuldrechts im internationalen Privatrecht (1941) 54 ZVglRWiss 168; Pierre Engel, La détermination des points de rattachement en droit international privé (1953); Ivo Schwander, Lois d’application immédiate, Sonderanknüpfung, IPR-Sachnormen und andere Ausnahmen von der gewöhnlichen Anknüpfung im internationalen Privatrecht (1975); Torger W Wienke, Zur Anknüpfung der Vorfrage bei international-privatrechtlichen Staatsverträgen (1977); Harald Baum, Alternativanknüpfungen (1985); Paolo Michele Patocchi, Règles de rattachement localisatrices et règles de rattachement à caractère sustantiel (1985); Gerald C Gonzenbach, Die akzessorische Anknüpfung (1986); Frank Vischer, ‘Connecting Factors’ in IECL III (1998) ch 4; Roberto Baratta, Il collegamento piu stretto nel diritto internazionale privato dei contratti (1991); Jan von Hein, Das Günstigkeitsprinzip im internationalen Deliktsrecht (1999).