O „zakresie przedmiotowym” i „zakresie sytuacyjnym” konwencyjnych norm kolizyjnych. Rozważania na tle art. 35 umowy polsko-ukraińskiej z 1993 r.
On “Material Scope” and “Spatial Reach” of Conflict-of-laws Rules of an International Agreement. Study on Article 35 of the Agreement of 1993 between Poland and Ukraine

Summary/Abstract: The conflict-of-laws rules laid down in an international agreement binding Poland and a non-Member State enjoy priority over rules of national origin (where a situation does not fall within the scope of EU conflict-of-laws rules), as well as over EU private international law rules (on the basis of the clauses provided for in the EU Regulations), yet in both cases exclusively in scenarios falling within their own scope of application. With regard to conflict-of-laws rules of a bilateral international agreement, such as those provided for in Article 35 of the Agreement of 1993, the characterization has to be carried out independently from the understanding of specific concepts that may be inferred from national substantive law or from private international law, be it of domestic or EU origin. As to the determination of the “material scope” of such conflict-of-laws rules, the textual interpretation of a bilateral agreement in question should play crucial role. Although the conflict-of-laws rules of such agreements generally call for characterization of the legal institutions established by the legal order of one of the two Contracting States, the comparative study limited to those two legal orders can merely serve as guidance when it comes to the determination of the “material scope” of those conflict-of-laws rules. While it is difficult to formulate generalizable conclusions concerning the “spatial reach” of the conflict-of-laws rules provided for in a bilateral agreement, it can be argued that — in the course of a dispute before a court — the law designed as applicable under Article 35 (1) of the Agreement of 1993 applies to the assessment of tort liability originating in an event that occurred on the territory of Poland or Ukraine, if the individuals involved in the tort have their domicile (seat) on the territory of Poland or Ukraine, and — although this is highly debatable — insofar as they have the nationality of one of these States, provided that all the above-mentioned elements do not link the situation underlying that dispute exclusively with only one of those States.

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