Dreptul internațional privat intertemporal
Intertemporal private international law

In time dispute of rules of conflict. Homo, fuge!

Summary/Abstract: This is a critical study of the article 207 (1) of Law 71/2011 on the implementation of Law 287/2009 on the Civil Code, according to which the new rules of conflict shall be enforced immediately, in all the cases that come in for judgement in a court of law or before any other competent authority after the entry into force of the New Civil Code (NCC) that is, October 1st 2011. The legislator did not took into account for reference the date that legal relationship containing elements of extraneity come to life, but the date a court of law (or public notary or any other public authority) is vested with the case, making no distinction, in that regard, between legal relationships that have entirely produced their effects prior to the entry into force of the new code and those that produce effects later on. In the case of the latter, also, there is no distinction made between the effects that have been consumed and those that are to be produced in the future, after the 1st of October 2011.In the case of relationships born before the application of the new rule of conflict and which fully produced their effects until such date – such as, for instance, when the succession was opened under the former code, but which proceed before the notary public or, as the case may be, are pending after the coming into effect of the code – we are in the presence of a retroactive application of the new conflict rule, that contradicts the constitutional principle of nonretroactivity of laws [enshrined in article 15 (2) Romanian Constitution]. The rule of conflict is not a „procedural” rule, it cannot hold suspended the private relationship (Lebensverhältnis) until judgement or until a notary public or any other authority is called upon to issue a ruling, refusing to transform it into a legal relationship, but, on the contrary, it is enforced as soon as the generating act or fact came into being, determining the applicable law and transforming therefore the relation into legal relationship. Once the succession is opened – to take this example on – it is governed, form the very moment of its opening, by a given material law (lex successionis), determined according to localization criteria set forth by the conflict rule then in effect. Any rights and obligations of heirs (be they legal, testamentary or contractual, as the case may be) shall be transmitted upon the death of the estate author being „pervaded” by the material law which was designated as competent.

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