Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Finland

Ulla Liukkunen

I. Sources of private international law

1. Major legislation

In the absence of codification, private international law rules can be found in various pieces of Finnish legislation. Most of the pieces of legislation that exclusively contain private international law provisions are EU regulations that bind Finland. In addition several pieces of substantive legislation contain provisions of a private international law nature with a background in EU legislation or international conventions that Finland has bound itself to. These provisions are mainly based on Europeanization of private international law based on legislative work within the EU and on conventions born out of Nordic cooperation as well as conventions prepared by the Hague Conference on Private International Law. Altogether the body of private international law provisions is complex and scattered in Finland.

Since 1995 Finland has been a member of the EU. In particular, Europeanization of Finnish private international law, whose nature changed with the entry into force of the Treaty of Amsterdam (Treaty of Amsterdam amending the Treaty on the European Union, the Treaties establishing the European Communities and p. 1certain related acts (consolidated version), [1997] OJ C 340/01) and whose legal basis was further strengthened by the TFEU (The Treaty on the Functioning of the European Union (consolidated version), [2012] OJ C 326/47), has not only changed the content of private international law regulation in several fields of law but has also extended the coverage of private international law legislation.

Unilateral conflicts rules that concern the application of Finnish law are only included in certain pieces of Finnish legislation. These include the Seafarers’ Employment Contracts Act (Merityösopimuslaki No 756/2011), the Seamen’s Working Hours Act (Merityöaikalaki No 296/1976), the Act on Working Hours on Vessels in Domestic Traffic (Laki työajasta kotimaanliikenteen aluksissa No 248/1982), the Seamen’s Annual Holidays Act (Merimiesten vuosilomalaki No 433/1984), and the Act on Contracts of Carriage of Goods by Road (Tiekuljetussopimuslaki No 345/1979). Some statutory conflicts rules based on the transposition of EU internal market law directives can also be regarded as unilateral.

2. International conventions

As for international conventions, Finland follows the dualistic model by transposing obligations set by international agreements into national law through Parliamentary Acts or in some cases Decrees issued by the President. According to art 95(1) Finnish Constitution (Perustuslaki No 731/1999), ‘the provisions of treaties and other international obligations, in so far as they are of a legislative nature, are brought into force by an Act’.

For Finland the Hague Conference on Private International Law has produced significant regulation in the field of private international law. As of 1 September 2014 Finland had ratified, acceded to or was otherwise bound by the following Hague conventions: the Hague Civil Procedure Convention (Hague Convention of 1 March 1954 on civil procedure, 286 UNTS 265); the Hague Sales Convention (Hague Convention of 15 June 1955 on the law applicable to international sales of goods, 510 UNTS 147), the Hague Child Maintenance Convention 1956 (Hague Convention of 24 October 1956 on the law applicable to maintenance obligations towards children, 510 UNTS 161), the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalization for foreign public documents, 527 UNTS 189), the Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175), the Hague Service Convention (Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, 658 UNTS 163), the Hague Divorce and Separation Convention (Hague Convention of 1 June 1970 on the recognition of divorces and legal separations, 978 UNTS 399), the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241), the Hague Maintenance Recognition and Enforcement Convention 1973 (Hague Convention of 2 October 1973 on the recognition and enforcement of decisions relating to maintenance obligations, 1021 UNTS 209), the Hague Products Liability Convention (Hague Convention of 2 October 1973 on the law applicable to products liability, 1056 UNTS 191), the Hague Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375), the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and cooperation in respect of inter-country adoption, 32 ILM 1134), the Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391) and the Hague Adult Protection Convention (Hague Convention of 13 January 2000 on the international protection of adults, Hague Conference of Private International Law (ed), Collection of Conventions (1951–2009) (Intersentia 2009) 426). Finland is also bound by the Hague Maintenance Convention 2007 (Hague Convention of 23 November 2007 on the international recovery of child support and other forms of family maintenance, [2011] OJ L 192/51) and the Hague Maintenance Protocol 2007 (Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, [2009] OJ L 331/19).

Among the →UNCITRAL conventions Finland has ratified the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign p. 1arbitral awards, 330 UNTS 3) and the CISG (United Nations Convention of 11 April 1980 on contracts for the international sale of goods, 1489 UNTS 3). Finland has also ratified the UN Maintenance Convention 1956 (United Nations Convention of 20 June 1956 on the recovery abroad of maintenance, 268 UNTS 3 and 649 UNTS 330).

Among the ILO Conventions ratified by Finland, the ILO Convention No 94 (Convention (No 94) of 29 June 1949 concerning labour clauses in public contracts as modified by the Final Articles Revision Convention, 1961, 138 UNTS 207) has an impact on →choice of law.

Within the Council of Europe, Finland has ratified conventions also in the field of private international law. Finland is a contracting party to the European Foreign Law Convention (European Convention of 7 June 1968 on information on foreign law, 720 UNTS 147), the European Agreement on the Transmission of Applications for Legal Aid (European Agreement of 27 January 1977 on the transmission of applications for legal aid, ETS No 92, 1137 UNTS 81) and the European Child Custody Convention (European Convention of 20 May 1980 on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children, 1496 UNTS 37).

Multilateral conventions between the Nordic countries (→Denmark, Finland, →Iceland, →Norway and →Sweden) have traditionally formed an important part of Finnish private international law regulation in the field of family law. Finland is a contracting party, along with the other Nordic states, to the following treaties: the 1931 Nordic Convention containing certain provisions of private international law on marriage, adoption and guardianship (Convention of 6 February 1931 containing certain provisions of private international law regarding marriage, adoption and guardianship, with final Protocol, 126 LNTS 121 (amended 1953, 202 UNTS 241, also amended 1969, 1973 and 2008)) and the Exchange of Notes between Finland and Denmark 9 June 1931 (Avioliittoa, lapseksiottamista ja holhousta koskevia kansainvälis-yksityisoikeudellisia määräyksiä sisältävä Suomen, Islannin, Norjan, Ruotsin ja Tanskan kesken tehty sopimus sekä siihen liittyvät loppupöytäkirja ja Suomen ja Tanskan välinen 9 päivänä kesäkuuta 1931 käyty noottienvaihto, Finnish Treaty Series No 20/1931); the 1934 Nordic Convention on Succession and Wills (also Convention concerning inheritance, testamentary dispositions and the administration of estates of deceased persons of 19 November 1934, 164 LNTS 243, amended 1975 (amended by a new Convention 1 June 2012, not entered into force)); Suomen, Islannin, Norjan, Ruotsin ja Tanskan välinen perintöä, testamenttia ja pesänselvitystä koskeva sopimus, Finnish Treaty Series Nos 20–21/1935); the 1933 Nordic Convention on bankruptcy (Convention of 7 November 1933 regarding bankruptcy, 155 LNTS 115, amended 1977, 1102 UNTS 181, latest changes 1419 UNTS 384; Suomen, Tanskan, Islannin, Norjan ja Ruotsin välinen konkurssia koskeva sopimus, Finnish Treaty Series No 34/1934); the 1962 Nordic Convention on recovery of maintenance (Convention of 23 March 1962 concerning the recovery of maintenance contributions, 470 UNTS 43; Suomen, Islannin, Norjan, Ruotsin ja Tanskan välinen sopimus elatusavun perimisestä pakkotoimin, Finnish Treaty Series No 8/1963); and the Nordic Convention of 11 October 1977 on recognition and enforcement of civil law judgments (1102 UNTS 163; Sopimus Suomen, Islannin, Norjan, Ruotsin ja Tanskan kesken yksityisoikeudellista vaatimusta koskevien tuomioiden tunnustamisesta ja täytäntöönpanosta, Finnish Treaty Series No 55/1977). Additionally, certain Nordic environmental conventions contain individual choice-of-law rules.

In the field of international transport, private international law provisions are contained in several international conventions that Finland has ratified, such as the Convention on the contract for the international carriage of goods by road of 19 May 1956 (CMR, 399 UNTS 189; →Carriage of goods by road, rail and inland waterways) and the Convention concerning international carriage by rail (COTIF) (Convention of 9 May 1980 concerning international carriage by rail, 1396 UNTS 2, in the version of the Protocol of Modification of 3 June 1999, available at <www.otif.org>).

Finland has also concluded several bilateral conventions in the field of private international law, for instance, with →Poland the Agreement on legal protection and legal assistance in civil, family and criminal cases (Sopimus Suomen Tasavallan ja Puolan Kansantasavallan välillä oikeussuojasta ja oikeusavusta siviili-, perhe- ja rikosasioissa, Finnish Treaty Series No 67/1981).

3. p. 1Significance of EU private international law

The Europeanization of private international law has caused considerable changes in Finnish private international law legislation. In addition to EU regulations of a private international law nature, certain EU directives contain provisions on jurisdiction and/or choice of law that have been implemented in various pieces of legislation. As a result, several private international law provisions are found in pieces of legislation which mainly contain substantive rules.

4. Role of case-law

Case-law has played a limited role in the development of Finnish private international law. However, with EU membership, CJEU judgments that relate to private international law have come to shape the contents of private international law in Finland.

5. Role of doctrinal writings

Private international law legislation was largely absent until the 1980s in most fields of law and even thereafter remarkable lacunae remained. Doctrinal writings have had an important role in the development of Finnish private international law.

II. History and development of private international law

In earlier times private international law in Finland developed through legal doctrine. The first Finnish monograph in the field was Robert Montgomery’s Handbok för Finlands allmännaprivaträtt (Manual for Finnish General Private Law), published in Swedish in 1889. This monograph acknowledged the possibility of the need to apply foreign law in Finland in certain cases. The doctrinal discussion following Montgomery’s monograph, especially in the form of the writings of Professor F.W. Ekström, also paid attention to foreign discussion of the field and introduced the ideas of →Savigny, Friedrich Carl von and →Mancini, Pasquale Stanislao. One of the purposes of doctrinal writings was to form general principles on which conflict rules could be based (see Robert Montgomery, Handbok för Finlands allmännaprivaträtt (Edlund 1889); Markku Helin, Suomen kansainvälinen perhe- ja perintöoikeus (Talentum 2013) 111–19)).

After Finland achieved independence in 1917, legislative work in the field of private international law started for family law issues. In 1929 the Act Relating to Certain Family Relations of International Character (Laki eräistä kansainvälisluontoisista perheoikeudellisista suhteista No 379/1929, which has been repealed) was enacted. This Act was based on the principle of →nationality and largely followed regulation adopted by the Hague Conference on Private International Law in the 1900s. In the 1930s Nordic cooperation in the field of international family law brought the first conventions. In the conventions on →marriage and inheritance the underlying principle was that of habitual residence. Until the 1960s, national-level legislation and Nordic conventions formed the basis of international family law regulation. In 1962 Finland acceded to the Hague Child Maintenance Convention 1956. Developments within international family law led in the direction of a gradual abandoning of the principle of nationality.

In the 1960s private international law research intensified with the first Finnish dissertation in the field, Heikki Jokela’s Irtaimen kaupasta kansainvälisen yksityisoikeuden kannalta (Vammalan Kirjapaino Oy 1960), which focused on private international law questions involving sale of goods. During the same decade Finland ratified the New York Convention.

In the absence of general private international law codification, enactment of national codification of choice-of-law rules on →contractual obligations played an important role in the development of private international law in Finland. Legislative work in the 1980s on statutory choice-of-law rules for contractual relations followed a broader European trend. The Finnish legislature aimed at private international law legislation which would correspond to the largest possible extent to the legislation of other Scandinavian and European countries. In addition, the aim was to create rules to a large extent similar to those of the Rome Convention (Rome Convention on the law applicable to contractual obligations (consolidated version), [1998] OJ C 27/34; →Rome Convention and Rome I Regulation (contractual obligations)), since Finland wanted to follow new developments in European private international law. Thus, the Rome Convention had a marked effect on the contents of Finnish legislation on →choice of law, even before the Convention’s international entry into force p. 1and even before Finland had bound itself to the Convention. When the Rome Convention came into force in Finland on 1 April 1999, the Law Applicable to International Contractual Relations (Laki sopimussuhteisiin sovellettavasta laista No 466/1988 (1988 Codification)) was repealed.

Before the codification of the conflicts rules on contractual obligations, which occurred at the end of the 1980s, the terminology of Finnish conflicts law had remained vague. For instance the doctrine of mandatory rules had remained particularly obscure. Despite the objective of following international models, and the Rome Convention in particular, the content of the 1988 Codification was partly tailored according to what was understood to be national needs at that time. For example, special rules for consumer and employment contracts in the 1988 Codification deviated from the regulatory approach of the Rome Convention, and so they excluded some of its essential elements in terms of the sphere of →party autonomy. At the same time some parts of the 1988 Codification were modern. In particular a provision enabling application of overriding mandatory rules (→Overriding mandatory provisions) linked the Codification to new European trends in the field of private international law.

The 1988 Codification was a significant step in the overall development of private international law field in Finland, especially as it heralded a process of Europeanization in Finnish private international law. The new phase of development in the field of private international law, which began in the 1980s, can be viewed as part of a broader change in the Finnish legal order of that decade, as Finland was leaning towards Western Europe and preparing itself for European economic integration (see Ulla Liukkunen, ‘Recent Private International Law Codifications’ in Erkki J. Hollo (ed), Studies on the Finnish Legal System (EDILEX Edita Publishing 2011); see also Niilo Jääskinen, Eurooppalaisen oikeuden oikeusteoreettisia ongelmia (Yliopistopaino 2008). The two last decades of the 20th century were also significant as Finland signed the →Lugano Convention (Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1988] OJ L 319/9) in 1988, followed by the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1) in 1996. These two Conventions began the Europeanization of private international law as regards jurisdictional rules and remarkably limited the sphere of autonomous private international law in Finland.

The emergence of statutory private international law rules also made the overall objectives of legal certainty and predictability more explicit. Before the 1988 Codification, the scarcity of both statutory choice-of-law rules and case-law had made it difficult to predict the results of choice of law. In legislative work the Finnish legislature aimed at choice-of-law rules which would be as similar as possible to those of other states, so that the state where the court is located would be reduced to a minimum as a factor having an effect on the outcome of court proceedings. Hence, the prevention of forum shopping (→Forum (and law) shopping) was held to be important. It was thought that the best way to achieve this was to create rules, the basic principles of which would resemble the rules of the Rome Convention.

When Finland implemented the Rome Convention in 1999, in broad terms the ensuing changes were not considered to be of great significance. However, noteworthy changes occurred in the extent of →party autonomy, in the content of →connecting factor rules, and in particular mechanisms for protecting weaker parties. Compared to the 1988 Codification, the conflicts rules in the Rome Convention were more flexible in leaving more latitude for considering the outcome of applying certain substantive law.

The expansion of EU private international law legislation to cover an extending area of subject matter has meant that an increasing amount of private international rules are to be found in Finnish legislation.

The →Rome II Regulation (non-contractual obligations) (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40) brought about a significant change in the field of non-contractual obligations. Before the Rome II Regulation came into force, Finland had no general statutory choice-of-law rules on non-contractual obligations and the content of existing principles of choice of law had remained ambiguous. The Rome II Regulation brought about a fundamental p. 1change to the basis of choice of law along with certainty of the content of the applicable rules.

In the field of international family law, in 2002 Finland carried out a reform modernizing the entire regulation on private international law. The reform concerned choice-of-law rules on the law applicable to marriage and the legal relations of spouses. It also included recognition of foreign marriages and the international jurisdiction of Finnish courts in cases involving legal relations between spouses. Provisions on the international jurisdiction of Finnish authorities in inheritance questions as well as on the law applicable to inheritance, estate administration, and estate distribution were included in legislation on succession. The reform meant a number of significant changes in the regulatory approach and clarified, for example, the status of mandatory rules in choice of law. Certain substantive rules were expressly enacted as overriding mandatory. The Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Rome IV Regulation (succession)) will bring about changes to the legal situation whereas the →Rome III Regulation (divorce) (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10) will not be applied by Finland.

Nordic cooperation in the field of in the field of private international law has been especially strong and successful in the field of international family law and has shaped the regulatory approach in Finland. This cooperation has a long history, dating back to the first meeting of Nordic lawyers in 1872. However, as a result of expanding European integration, Nordic cooperation in the field of private international law has diminished. With the most recent EU regulations the relevance of existing Nordic conventions in the field of private international law will also be limited in the future.

III. Administration of private international law

1. Courts and non-judicial authorities

Private international law matters mainly fall within the scope of the jurisdictional powers of ordinary courts. However, the Helsinki Court of Appeal acts as the court of first instance for certain issues involving international family law and →child abduction.

In some areas, specific competences of authorities have been established as regards the need to nominate a central authority. For example, the Act on the Central Authority in Finland in Certain International Matters Relating to Maintenance (Laki Suomen keskusviranomaisesta eräissä elatusapua koskevissa kansainvälisissä asioissa No 1076/2010) contains provisions on the Central Authority in Finland in international matters relating to maintenance and on the right of the Central Authority to obtain information and other executive assistance from another authority in these matters. The Finnish Ministry of Justice is the Central Authority referred to in art 49 of the Maintenance Regulation (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, [2009] OJ L 7/1); the Transmitting and Receiving Agency referred to in the Hague Maintenance Convention 1956; and the Central Authority referred to in art 3 of the Agreement between the Government of the United States of America and the Government of Finland for the Enforcement of Maintenance (Support) Obligations (Sopimus Suomen hallituksen ja Amerikan Yhdysvaltain hallituksen välillä elatusvelvollisuuden täytäntöönpanosta, Finnish Treaty Series No 74/2007). The Ministry of Justice is also the Transmitting and Receiving Agency when reciprocal arrangements apply in the international recovery of maintenance.

2. Application of foreign law

No legislation exists on the question whether the court should of its own motion apply foreign law. According to the legal literature, in cases where a settlement is permitted the court may apply its own law if none of the parties has invoked foreign law. In cases where a settlement is not permitted the court usually has to apply choice-of-law rules on its own initiative. The court applies its own law to the question whether the case concerns a dispositive or non-dispositive dispute (see Ulla Liukkunen, Sopimussuhteita koskeva lainvalinta (Talentum 2012)).

If the court is not familiar with the law of a foreign state, the court encourages the p. 1party or parties to present evidence on the content of that law. Specific provisions apply if, in a given case, it is especially provided that the court is to obtain information on the contents of the foreign law applicable in the case. Finnish law applies if in a given case foreign law should apply but no information is available on its contents (Code of Judicial Procedure, Oikeudenkäymiskaari No 4/1734, ch 17 s 3(3)).

IV. Basic principles of jurisdiction

1. General structure

Finnish courts are granted general jurisdiction when the parties have submitted their dispute expressly or impliedly to a Finnish court, or when the defendant is domiciled in Finland.

2. Obligations

The Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1; →Brussels I (Convention and Regulation)), which sets out the basic rules of jurisdiction, is complemented by the →Lugano Convention as regards EEA countries that are not members of the EU. In cases where the Brussels I Regulation (recast) or the Lugano Convention does not apply, provisions of the Code of Judicial Procedure on jurisdiction are applicable. Some other provisions also apply in specific cases.

In a bankruptcy matter where the centre of the main interests of the debtor is located in Finland or in another EU Member State subject to the Insolvency Regulation (Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, [2000] OJ L 160/1), the jurisdiction of the Finnish courts is governed by the Insolvency Regulation. By virtue of ch 7 s 1(2) of the Bankruptcy Act (Konkurssilaki No 120/2004), if the centre of the main interests of the debtor is located in a non-EU Member State, the Finnish courts have jurisdiction if the debtor has business premises in Finland or holds such assets in Finland that it can be deemed expedient to begin the bankruptcy there. However, under the Nordic Bankruptcy Convention, the Finnish courts do not have jurisdiction if the debtor has been declared bankrupt in Denmark, Iceland or Norway and the debtor has been domiciled in the same state.

3. Property rights, corporations and intellectual property

In matters of property rights (→Property and proprietary rights), corporations and intellectual property the provisions of the Code of Judicial Procedure apply where the Brussels I Regulation (recast) does not apply.

Under chapter 10 section 54 of the Trademarks Act (Tavaramerkkilaki No 7/1964) a Finnish national or any person domiciled or having a real and effective industrial or commercial establishment in Finland that wishes to apply for international registration must file an application for international registration with the National Board of Patents and Registration of Finland. It is a condition of applying for international registration that the applicant has a registration or pending application concerning the same trade mark in Finland.

4. Family matters

In addition to the →Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1), special jurisdiction rules on family matters are set out in the Marriage Act (Avioliittolaki No 234/1929), the Paternity Act (Isyyslaki No 700/1975), the Adoption Act (Adoptiolaki No 22/2012) and the Act on Registered Partnerships (Laki rekisteröidystä parisuhteesta No 950/2001).

5. Succession

Special jurisdiction rules in matters of →Succession are provided by the Code of Inheritance (Perintökaari 40/1965). In addition the Convention between Finland, Denmark, Iceland, Norway and Sweden on Inheritance Testaments and Estate Administration contains specific provisions. The relevant provisions in the Succession Regulation have applied from 2015 onwards.

V. Basic principles of choice of law

1. General provisions

The basic principle is that all procedural matters are governed by the law of the forum.

p. 1Another basic principle is that →renvoi is allowed only when an express legal provision permits it. Hence, the overall approach towards the possibility of applying renvoi in private international law is negative. Certain Acts contain an express prohibition against renvoi.

2. Obligations

The Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6) and Rome II Regulation have become the bases for the rules on contractual and non-contractual obligations in Finland. As regards →contractual obligations, the Act on Law Applicable to Sale of Goods of International Character (Laki kansainvälisluontoiseen irtainten esineiden kauppaan sovellettavasta laista No 387/1964), based on the Hague Sales Convention, takes precedence over the Rome I Regulation.

Certain conflicts rules on specific types of contracts are contained in separate pieces of legislation. These include, for instance, the Act on the Law Applicable to Certain International Insurance Contracts (Laki eräisiin kansainvälisluonteisiin vakuutussopimuksiin sovellettavasta laista No 91/1993), the Maritime Act (Merilaki No 674/1994), the Act on Negotiable Promissory Notes (Vekselilaki No 242/1932) and the Act on Cheques (Shekkilaki No 244/1932). To the extent that the Rome I Regulation applies to these matters it now supersedes the laws cited.

Specific provisions related to weaker party contracts, that is, international →consumer contracts and employment contracts concluded with employees regarded as posted workers, are included in the Consumer Protection Act (Kuluttajansuojalaki No 38/1978) and the Posted Workers Act (Laki lähetetyistä työntekijöistä No 1146/1999) (→Employment, posting of workers). The latter Act is based on the transposition of the Posted Workers Directive (Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, [1997] OJ L 18/1).

Additionally, conflicts rules for certain types of non-contractual obligations are contained in separate international treaties to which Finland is bound. Finland is, for example, a party to the Hague Products Liability Convention which contains rules about some types of non-contractual obligations. However, in relation to other EU Member States, the provisions of the Rome II Regulation on non-contractual obligations take precedence (art 28(2) Rome II Regulation). In addition, some national acts contain rules on non-contractual obligations.

3. Property rights

The basic rules can be found in the Rome I and Rome II Regulations. In general, it can be considered that otherwise the lex rei sitae applies to the protection of the right.

4. Corporations

The Limited Liability Companies Act (Osakeyhtiölaki No 624/2006) applies to all limited liability →companies registered under Finnish law, unless otherwise provided in that Act or some other Act (s 1(1)). A limited liability company may be either private (private company) or public (public company). The case-law of the CJEU is relevant to determining the law applicable to corporations in Finland, which has traditionally favoured the corporation theory.

5. Intellectual property

The basic rules are to be found in the Rome I and Rome II Regulations. In general, it can be considered that otherwise the law of the protecting country applies to the protection of the right.

6. Family matters

Special choice-of-law rules on family matters are included, for example, in the Marriage Act, the Paternity Act, the Adoption Act and the Act on Registered Partnerships (Laki rekisteröidystä parisuhteesta No 950/2001).

The →choice of law concerning →Marriage is based on the principle of domicile (→Domicile, habitual residence and establishment) of the spouses. Under section 130(2) Marriage Act, spouses can agree to designate the law of the state where one spouse or both spouses are domiciled, or of which one of the spouses is a citizen at the time of the agreement, as the law applicable to their →matrimonial property matters. If the domicile of one or both spouses has moved to another state during the marriage, then the law of the state where both spouses p. 1were last domiciled may also be designated as the applicable law. If the spouses have not designated the applicable law, the principal rule, under section 129(1), is that the law of the state which became the state of domicile of both spouses after they married will apply to their matrimonial property matters. If the spouses later moved their domicile to another state, the law of that state will apply if the spouses resided there for at least five years (s 129(2)). However, the law of that state will apply immediately upon the spouses becoming domiciled there if they have earlier during the marriage been domiciled there or if both are citizens of that state (s 129(2)). The law applicable to the matrimonial property regime, under section 129(3), does not change if: (1) the spouses have agreed to designate the law applicable to the matrimonial property regime, or (2) owing to dissolution of the marriage, separation or the fact of pending divorce proceedings, a spouse has gained the right to claim distribution of matrimonial property before the time when the law of the other state would become applicable (→Divorce and personal separation). If no state has become the state of domicile for both spouses, the applicable law is, under section 129(4), the law of the state to which, taking all pertinent circumstances into account, the spouses have the closest connection.

The choice of law concerning →registered partnerships takes as a point of departure the habitual residence of the partners. Under section 10 Act on Registered Partnerships, a partnership may be registered in Finland only if at least one of the partners is a Finnish citizen and habitually resident in Finland, or if both parties have been habitually resident in Finland for two years. Under section 11 of the Act the right to register the partnership before a Finnish authority is determined in accordance with Finnish law.

The Maintenance Regulation applies to maintenance within the EU and the Hague Maintenance Protocol 2007 also applies as regards choice of law on →maintenance obligations.

7. Succession

Special jurisdiction rules in matters of →Succession are provided by the Code of Inheritance. In addition the Convention between Finland, Denmark, Iceland, Norway and Sweden on Inheritance, Testaments and Estate Administration contains specific provisions. The Succession Regulation has applied from 2015 onwards.

Under chapter 26 section 5(1) Code of Inheritance, inheritance is as a rule governed by the law of the state where the deceased was domiciled at the time of death. However, if the deceased had previously been domiciled in another state, the law of the state where the deceased was last domiciled is applied only if the deceased was a citizen of the latter state at the time of death or had resided in the latter state for at least five years before death (ch 26 s 5(2)). If these prerequisites are not fulfilled and the law of the last domicile thus does not apply, then the applicable law is to be the law of the state of which the deceased was a citizen at the time of death. However, if the deceased had an essentially closer connection to a state other than the state of citizenship at the time of death, taking all circumstances into account, then the applicable law is the law of the former state (ch 26 s 5(3)). Moreover, under chapter 26 section 6 Code of Inheritance the deceased may, with certain limitations, designate the law applicable to inheritance.

VI. Recognition and enforcement of judgments

Foreign judgments are not enforced if no international agreement or a provision in national legislation provides the basis for enforcement action. The general system of recognition and enforcement of judgments is based on the international treaties Finland has bound itself to and on EU regulations containing provisions on recognition and enforcement. Some conventions concern enforcement of judgments in specific matters, such as the Hague Maintenance Recognition and Enforcement Convention 1973; the UN Maintenance Convention 1956 (Yleissopimus elatusavun perimisestä ulkomailla, Finnish Treaty Series No 37/1962) and the Convention between Finland, Iceland, Norway, Sweden and Denmark Concerning the Recovery of Maintenance Contributions (Suomen, Islannin, Norjan, Ruotsin ja Tanskan välinen sopimus elatusavun perimisestä pakkotoimin, Finnish Treaty Series No 8/1963). In addition, the Act on Cooperation between Finnish and Foreign Authorities in Trials and in the Enforcement of a Decision of a Foreign Court in Certain Cases (Laki Suomen ja ulkomaan viranomaisten yhteistoiminnasta oikeudenkäynnissä sekä ulkomaan tuo-mioistuimen päätöksen täytäntöönpanosta eräissä tapauksissa No 171/1921) contains provisions on recognition of foreign judgments. Some p. 1bilateral conventions also contain provisions on enforcement and recognition, for example the Agreement between the Republic of Finland and the Union of Soviet Socialist Republics on Legal Protection and Legal Assistance in Civil, Family and Criminal Matters (Sopimus Suomen Tasavallan ja Sosialististen Neuvostotasavaltojen Liiton välillä oikeussuojasta ja oikeusavusta siviili-, perhe- ja rikosasioissa, Finnish Treaty Series Nos 47–48/1980).

Under section 12 Act on Registered Partnerships, a registered partnership between two persons of the same sex that has been registered in a foreign state is valid in Finland if it is valid in the state where it was registered.

VII. Arbitration

The current Finnish Arbitration Act (Laki välimiesmenettelystä No 967/1992) came into force in 1992. The objective of the legislature was to modernize the legislation and pay attention to the UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17; →Arbitration, (UNCITRAL) Model Law) and the New York Convention.

Under section 54(1) Arbitration Act, an arbitral award which has been issued in a foreign state and which under this Act should be recognized in Finland will be enforced there upon request. An application for enforcement is filed with the court of first instance (s 54(1)).

For the most part the provisions in the Arbitration Act apply to arbitration taking place in Finland regardless of whether the arbitration is domestic or international in nature. The scope of the Act is wide, governing any dispute in civil or commercial matters that can be settled by agreement between the parties. As regards enforcement of arbitration awards, the Act includes separate provisions on an award given in Finland and an award given in a foreign country. The latter reflect the content of the New York Convention.

Literature

  • Hallituksen esitys Eduskunnalle kansainvälisluonteisiin sopimuksiin sovellettavaa lakia koskevaksi lainsäädännöksi, HE 44/1987 vp;

  • Markku Helin, Suomen kansainvälinen perhe- ja perintöoikeus (Talentum 2013);

  • Heikki Jokela, Irtaimen kaupasta kansainvälisen yksityisoikeuden kannalta (Vammalan Kirjapaino Oy 1960);

  • Niilo Jääskinen, Eurooppalaistuvan oikeuden oikeusteoreettisia ongelmia (Yliopistopaino 2008);

  • Ulla Liukkunen, The role of mandatory rules in international labour law – a comparative study in the conflict of laws (Talentum 2004);

  • Ulla Liukkunen, ‘Recent Private International Law Codifications’ in Erkki J Hollo (ed), Studies on the Finnish Legal System (EDILEX Edita Publishing 2011, <www.edilex.fi/artikkelit/8070>);

  • Ulla Liukkunen, Sopimussuhteita koskeva lainvalinta (Talentum 2012);

  • Robert Montgomery, Handbok för Finlands allmännaprivaträtt (Edlund 1889).