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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Luxembourg

Patrick Kinsch

I. General

The most significant factor in any description of Luxembourg private international law is also the most readily apparent: the very small size of the Grand Duchy of Luxembourg’s territory and – more relevantly – population, together with the peculiarity of the economic model of Luxembourg. The population of Luxembourg is of some 500,000 inhabitants; of these, more than 40 per cent are of foreign →nationality (the vast majority are nationals of an EU Member State); among private sector workers at all hierarchical levels, a full 80 per cent are foreigners. Also, some 150,000 frontier workers from Belgium, France and Germany are employed in Luxembourg. The economy of Luxembourg, which has always been an open economy depending on foreign trade, has specialized in financial services so as to become progressively a quasi-monoculture, and up to now it has done so with considerable success – and growth rates.

Three peculiarities of Luxembourg’s private international law follow from this. First, the typical questions of private international law are (and have always been) of particular importance in the practice of Luxembourg law; thus, the determination of their international jurisdiction and the determination of the applicable law are part of the courts’ everyday tasks. Second, p. 1however, this does not – and quite possibly cannot, in view of the country’s small size – translate into great creativity of the Luxembourg courts or legislature in fashioning original private international law solutions; on the contrary, private international law is treated like ordinary civil and commercial law, and remains closely dependent on a foreign model, which in the case of private international law is the law of France to the (ever smaller) extent that it is not replaced by EU Regulations. Third, as a general matter, the energies of the Luxembourg legislature are concentrated on two tasks: the implementation of an increasing number of EU Directives – in a small country, this will inevitably absorb the major part of the legislature’s time – and, in recent years, the attempt to improve the international position of the Luxembourg financial sector through the ‘competitiveness’ of its law, including its private law, on the international market for normative products. Although these efforts to be a successful participant in the →regulatory competition in a globalized economy mainly concern the content of substantive law in fields that are perceived as important to the development of the financial sector, they also have occasionally effects on choice-of-law rules (→Economic analysis and private international law; for an example, see below, section IV.2.b) and g), and the references to the law of 5 August 2005 on financial collateral arrangements). But Luxembourg’s economic policy is also characterized by very protective rules of labour law, which Luxembourg attempts to enforce through the technique of internationally mandatory rules (below, section IV.2.a)).

II. Sources of private international law

1. The French model

The most significant feature of Luxembourg private international law is the absence of a codification of this branch of the law – indeed, the absence of legislative provisions on most choice-of-law rules and on all the overarching concepts of private international law: →renvoi, →public policy (ordre public), incidental questions, etc. The uncodified form of private international law, which entails that private international law is almost completely a field of judge-made rules, is a common feature of Luxembourg and of French private international law. In 1804, when the French Civil Code (Code Civil of 21 March 1804, which still is, in both countries, the main legislative source for such written conflict rules as exist) was adopted in France, the present territory of Luxembourg was a part of France and after its creation as an independent state (Final Act of the Vienna Congress of 1815 and the Treaty of London of 1839), Luxembourg maintained the French Civil Code as the basis of its private law. The Civil Code is an unsatisfactory legislative basis for private international law – the Code was promulgated in the beginning of the 19th century, at a time where conflicts learning was confined to statutist thought and was very much in need of modernization. But French private international law has never been codified, and the same is true of private international law in Luxembourg. An attempt, in 1969, to codify the field in the setting of the Benelux union between the →Netherlands, →Belgium and Luxembourg (draft Benelux Treaty of 3 July 1969 providing a uniform law on private international law) failed. Since then, the dependence of Luxembourg’s private international law on the intellectual model provided by France has become stronger rather than weaker. Luxembourg has not made an attempt to draft its own law on private international law, and its courts have followed faithfully the jurisprudence of the French Cour de cassation – including in some of its more erratic experiments, such as the attempts to devise a satisfactory solution to the problem of the status of foreign law.

The overall result of this is that generally the solutions of French law are also accepted in Luxembourg. This is true of all the concepts of the general theory (or ‘general part’) of private international law, where French jurisprudence is the only reference. It is also true of the detailed conflict rules, save where there are divergent legislative provisions in both countries (this happens, but is rare). However, in two fields of commercial law with major private international law aspects – company law and the law of bankruptcy – the law of Luxembourg was modernized at the juncture of the 19th and the 20th centuries by imitating Belgian law which had, at the time, a reputation of progressiveness. In these two fields, it has followed the Belgian approach to aspects of private international law as well and continues to follow it – but without legislating in imitation of the Belgian Private International Law Act (Wet houdende het Wetboek von international privaatrecht/Code de droit international privé of 16 July 2004, BS 27 July 2004, p 57344, 57366).

2. International conventions

International conventions take precedence over national legislation; this rule has been established in Luxembourg case-law since 1950 (Cass. p. 18 June 1950, Pas.lux. 15, 41). Luxembourg has traditionally been an active participant in multilateral efforts of progressive unification of private international law.

Luxembourg is bound by many of the conventions negotiated at the →Hague Conference on Private International Law. As of 1 April 2017, it has ratified or acceded to the following Hague Conventions: the Hague Convention on Civil Procedure of 17 July 1905 (Convention du 17 juillet 1905 relative à la procédure civile; Mémorial 1909, p 693, available at <www.hcch.net>); 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 Infant Protection Convention (Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants, 658 UNTS 143); 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 Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189); 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 Traffic Accident Convention (Hague Convention of 4 May 1971 on the law applicable to traffic accidents, 965 UNTS 415); the Hague Products Liability Convention (Hague Convention of 2 October 1973 on the law applicable to products liability, 1056 UNTS 191); 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 Maintenance Applicable Law Convention 1973 (Hague Convention of 2 October 1973 on the law applicable to maintenance obligations, 1056 UNTS 204); the Hague Matrimonial Property Convention (Hague Convention of 14 March 1978 on the law applicable to matrimonial property regimes, 16 ILM 14); the Hague Marriage Convention (Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages, 1901 UNTS 131); the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89); the Hague Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375); the Hague Trust Convention (Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition, 1664 UNTS 311); the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 32 ILM 1134); and the Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391). Additionally, Luxembourg is bound by the Hague Convention of 30 June 2005 on Choice of Court Agreements, the Hague Convention of 23 November 2007 on the International Recovery of Child Support, and the Hague Maintenance Protocol 2007 (Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, [2009] OJ L 331/19), in each case through the ratification of the EU.

Luxembourg is a party to a number of conventions concluded within the framework of the UN: the UN Maintenance Convention 1956 (United Nations Convention of 20 June 1956 on the recovery abroad of maintenance, 268 UNTS 3); the CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3); the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3); and the European Arbitration Convention (European Convention of 21 April 1961 on international commercial arbitration, 484 UNTS 349).

Luxembourg also is a contracting party to conventions concluded within the Council of Europe: the European Foreign Law Convention (European Convention of 7 June 1968 on information on foreign law, 720 UNTS 147); the European Agreement of 27 January 1977 on the Transmission of Applications for Legal Aid (ETS No 92); and the European Child Custody Convention (European Convention 20 May 1980 on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children, 1496 UNTS 37).

p. 1Furthermore, Luxembourg is a particularly active participant in the activities of the CIEC (→CIEC/ICCS (International Commission on Civil Status)) and has ratified the following conventions: the Convention of 27 September 1956 on the issue of certain extracts from civil status records to be sent abroad (299 UNTS 211); the Convention of 26 September 1957 concerning the issuance of free of charge copies of civil registration documents and the waiver of authentication requirements relating thereto (932 UNTS 35); the Convention of 4 September 1964 on the international exchange of information relating to civil status (932 UNTS 48); the Convention of 4 September 1958 on changes of surnames and forenames (932 UNTS 59); the Convention of 12 September 1962 concerning the establishment of maternal filiation of children born out of wedlock (932 UNTS 76); the Convention of 10 September 1964 on the exchange of information relating to acquisition of nationality (932 UNTS 88); the Convention of 10 September 1964 concerning decisions with regard to the rectification of civil registration documents (932 UNTS 99); the Convention of 10 September 1970 on legitimation by marriage (1081 UNTS 247); the Convention of 13 September 1973 on the reduction of the number of cases of statelessness (1081 UNTS 287); the Convention of 13 September 1973 concerning the recording of family and given names in civil registers (1081 UNTS 277); the Convention of 12 September 1974 establishing an international family record booklet (1129 UNTS 88); the Convention of 8 September 1976 concerning the issue of plurilingual extracts from civil status records (1327 UNTS 3); the Convention of 15 September 1977 waiving authentication of certain certificates and documents (1224 UNTS 127); and the Convention of 5 September 1980 concerning the issue of certificates of non-impediment to marriage (1390 UNTS 65).

The conventions cited above are multilateral conventions. Almost no bilateral conventions are in force at the present time. Luxembourg never had an important network of bilateral conventions in the fields of →choice of law, jurisdiction or recognition of judgments in civil or commercial matters; the only bilateral convention on judgment recognition presently in force – the Convention between Austria and Luxembourg of 29 July 1971 on the Recognition and Enforcement of Judicial Decisions and Authentic Instruments in Civil and Commercial Matters (Mémorial A 1975, p 1040) – lost most of its purpose after Austria joined the Brussels I regime (→Brussels I (Convention and Regulation)); it remains applicable only to a few civil matters not covered by an EU Regulation. The other bilateral conventions that remain in force are a number of conventions in the field of international judicial assistance, which are in general ancillary to the Hague Convention on Civil Procedure Convention of 17 July 1905. These are the conventions with France (1884 and exchange of declarations 1956, Mémorial 1884, p 195 and Mémorial A 1956, p 1117, respectively), Germany (1909, Mémorial 1909, p 693), Norway (1910, Mémorial 1910, p 389), Denmark (1912, Mémorial 1912, p 85), Austria (1972, Mémorial A 1974, p 1703), Belgium (1974, Mémorial A 1974, p 786), the Netherlands (1974, Mémorial A 1974, p 302) and Switzerland (1979, Mémorial A 1979, p 572).

3. EU private international law

The significance and success of the EU’s efforts at the unification of the private international law among its Member States is considerable and obvious. This is not a phenomenon specific to Luxembourg, but it does have one effect on Luxembourg’s as yet uncodified private international law: at the present stage, it is too late to even consider a Luxembourg codification. Too many aspects of it have become regulated by EU Regulations for such a first-time national codification to make sufficient sense, at least in Luxembourg’s particular context of the limits of legislative energies in a small country and the concentration of these energies on certain fields, none of which comprises traditional private international law (see above, section I.).

III. Administration of private international law

The administration of private international law is not entrusted to a specific public body. Registrars in charge of the civil registry (officiers de l’état civil), notaries public and, above all, the ordinary civil courts (there is no institutional distinction between civil and commercial courts) will administer these cases as they administer purely national cases.

Registrars and notaries public are supposed to apply private international rules ex officio. The question of the existence or non-existence of a similar obligation of the courts is more complex and has been influenced, in the past, by the hesitations of the French Cour de cassation over the p. 1same issue. From an initial position of assimilation of foreign law with the purely factual elements of a litigated case, under which it was the parties who had to plead the applicability of foreign law and had the →burden of proof of its content, and through a number of intermediary stages, the courts have finally come to a compromise solution. A distinction is to be made between those areas of the law over which the parties have full control and where they can settle their disputes out of court (matières disponibles, in particular patrimonial cases) and those where they cannot settle their disputes (matières indisponibles, in particular family law cases not involving →succession or matrimonial property). The latter area is the area of the mandatory ex officio application of foreign law (→Foreign law, application and ascertainment); there, the fact that the parties do not plead foreign law is not a valid ground for a court’s decision to disregard the choice-of-law rule and to apply Luxembourg law as the →lex fori. The former area – droits disponibles – allows for such application of the lex fori in the absence of a plea by one of the parties for the application of foreign law (however, even in that area, there is nothing preventing a court from taking the initiative of raising of its own motion the question of the applicability of foreign law). Once a court has decided that a foreign law is applicable, it must determine its content, but it may request the parties to cooperate in that determination by all the means that may be at their disposal. If, despite the court’s (and the parties’) efforts, the content of the foreign law remains unknown or unclear, then the court is allowed to apply the law of the forum as a last resort.

The means of proof of foreign law in Luxembourg are not regulated by law. Foreign law, although it is not a factual element of the case, is to be proven like a fact by reference to legal documents of normative value in the foreign country and by reference to foreign authorities introduced as evidence into the case. Usually, if the parties offer to prove foreign law, they will do so by submitting expert opinions or sometimes merely documents (foreign laws or regulations, foreign cases or doctrinal writings) to the court, which is free to use them in making its findings on the content of foreign law. If the court itself adds efforts of its own, it can either refer to documents or appoint an expert, or it may use the procedure of mutual assistance provided by the European Foreign Law Convention that is in force among a number of Member States of the Council of Europe, under which the questions relating to the foreign law of the courts of one contracting state will be answered by state bodies of the requested state – the state whose law is at stake. This form of mixed judicial-administrative mutual assistance has its advantages (especially in terms of costs), but also a number of drawbacks (lack of thoroughness of the replies obtained from abroad and sometimes a lack of impartiality if the foreign state’s interests are directly or indirectly involved). Although it appears to be the preferred method of first resort for the purposes of determination of the content of foreign law by the Luxembourg courts themselves, it has not superseded the other methods.

IV. Basic principles of private international law

1. Jurisdiction

a) Normal bases of jurisdiction

In Luxembourg – as, presumably, in all the Member States of the EU – the EU Regulations (Brussels I Regulation recast (Regulation (EU) No 1215/2012 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)), 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), etc) are the most frequently used provisions for determining the international jurisdiction of the courts. However, they (plus the 2007 →Lugano Convention (Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339/3)) do leave some room for jurisdiction under national law for those matters that have been left outside the European unification and for jurisdiction towards defendants who do not benefit from the protection of the Regulations, such as persons domiciled in a third state under the Brussels I regime.

In every case where jurisdiction is to be provided under national rules, the first and foremost inquiry will be whether jurisdiction exists under the ‘ordinary rules of jurisdiction’, ie the provisions of law – contained, in general, in the New Code of Civil Procedure – which proceed to the delimitation of the jurisdiction of the Luxembourg courts of first instance among themselves. The fundamental rule of jurisdiction under p. 1Luxembourg is that the international jurisdiction of the Luxembourg courts exists under the condition that one of the courts of first instance has territorial jurisdiction under the ordinary rules. The content of the ordinary rules (in patrimonial matters) is comparable, in general, to the Brussels I regime, with a basic rule of jurisdiction of the courts of the defendant’s domicile (→Domicile, habitual residence and establishment) and alternative jurisdictional bases such as the place of the tort, the →place of performance of the contract, recognition of agreements on jurisdiction, special rules of jurisdiction in matters involving consumers, employees and insurance policyholders, the situs of →immovable property, and finally rules on litisconsortium and third-party proceedings similar to those existing under art 6 of the Brussels I Regulation.

There are some exceptions, of limited importance, to the applicability in international cases of the ordinary rules of jurisdiction (succession). In addition, there is a forum necessitatis in Luxembourg if this is the only way of allowing a plaintiff to gain access to justice.

b) Exorbitant basis of jurisdiction: the Luxembourg nationality of the plaintiff or the defendant

While the normal bases of jurisdiction are derived from the rules on jurisdiction of the Luxembourg first instance courts and therefore contain no element of exorbitancy or discrimination, the same cannot be said of the only bases of (international) jurisdiction which were part of the French codification of 1804 and which remain in force in Luxembourg. Under art 14 of the Luxembourg Civil Code as construed by French case-law (a case-law that is exceptionally favourable to this exorbitant jurisdiction and that has traditionally been followed in Luxembourg), in every case where a natural person or corporation possessing the →nationality of the forum is the plaintiff, the courts will have jurisdiction, including in cases involving foreign defendants domiciled abroad and a subject matter to the litigation that has no links to the forum. Article 15 CC extends this exorbitant jurisdiction to cases where the defendant has the nationality of the forum. Whether or not the plaintiff (under art 14 CC) or the defendant (under art 15 CC) is domiciled in Luxembourg is irrelevant.

Contrary to the exorbitant bases of jurisdiction existing under the law of other countries, the Luxembourg system, in particular art 14 CC, is characterized by its open favouring of the forum’s nationals. It is far from certain whether this system of ‘privilège de nationalité’ (‘privilege of nationality’), even assuming, with the French Cour de cassation, that it remains a valuable contribution to present-day French law, still is – or ever was – appropriate for Luxembourg, a country not given to dreams of national grandeur. It might have been better for Luxembourg to follow the lead of →Belgium (another Code Civil country), where art 14 CC was informally abolished in 1876. A noteworthy Luxembourg judgment from 2013 has thrown doubt on the compatibility of art 14 with the principle of equality within the meaning of the Luxembourg Constitution (Cour d’appel 6 November 2013, [2014] JTL 81).

As long as arts 14 and 15 CC remain part of Luxembourg legislation, two rules, common to French and Luxembourg law, will contribute to make them slightly less exorbitant. First, under a rule prudently devised by the courts, recourse to arts 14 and 15 CC is possible only if there is no ‘ordinary rule of jurisdiction’ under which the Luxembourg courts can assume jurisdiction; this contributes to make the privileging of the forum’s nationals less glaringly obvious. Second, within the scope of application of the EC regulations on jurisdiction and for the purpose of jurisdiction towards defendants resident in a third state, the benefit of art 14 is extended to plaintiffs resident in Luxembourg who are not of Luxembourg nationality (see art 4(2) Brussels I Regulation and, limited to plaintiffs who are EU citizens, art 7(2) Brussels IIa Regulation).

2. Choice of law

a) Obligations

Luxembourg did not have written conflict-of-laws rules in the field of obligations prior to the entry into force of the Rome I (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; →Rome Convention and Rome I Regulation (contractual obligations)) and →Rome II (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) regimes, and due to their universal applicability, both Regulations have now completely superseded the earlier unwritten Luxembourg choice-of-law rules (arguably this holds true even for matters formally p. 1excluded from the scope of application of the Regulations, which can nonetheless be applied by the courts by analogy, as ratio scripta).

A field where the Luxembourg legislature and the courts always had an active private international law policy is the protection of employees as the weaker party to employment contracts. Very early on, in 1959, the Luxembourg Cour de cassation held that by reason of their protective aim, workers’ protection laws were to be considered as overriding mandatory provisions (‘lois de police et de sûreté’; →Overriding mandatory provisions) of territorial applicability (Cour de cassation 2 July 1959, Pas.lux. 17, 443). In 1995, in the context of the discussion then going on in relation to the EU 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), the legislature took the unusual initiative of declaring virtually all the provisions of employment law to be ‘overriding mandatory provisions falling under national public policy’ and, as such, applicable to all workers employed – even temporarily as posted workers – in Luxembourg; this provisions was later on included as the first article in the Luxembourg Labour Code of 31 July 2006 (art L.010-1). Upon application by the European Commission, the ECJ ruled (Case C-319/06 Commission v Luxembourg [2008] ECR I-4323) that by declaring applicable to undertakings posting staff on its territory, for instance, the provisions requiring the automatic adjustment of wages other than minimum wages to reflect changes in the cost of living, Luxembourg had failed to fulfil its obligations under art 3(1) of the Posted Workers Directive, read in conjunction with art 10 thereof, and the Treaty provisions on freedom to provide services. Article L.010-1 of the Luxembourg Labour Code was minimally amended following that judgment, but remains basically in force.

b) Property rights

This area of →choice of law, as of yet untouched by European regulations, is governed in principle by a single simple rule, that of the applicability of the law of the property’s situs (→Property and proprietary rights). The rule is not codified as far as movable property is concerned, but – given the special importance of →immovable property at the time of enactment of the Civil Code – art 3(2) of the Code indicates that ‘immovables, even those belonging to foreigners, are governed by Luxembourg law’. This unilateral rule is considered as capable of bilateralization and as confirming the lex situs rule for immovables.

The one type of (movable) property that has appeared sufficiently important to the Luxembourg legislature to be recently made the object of a special choice-of-law rule is, predictably in view of their particular importance for the financial sector, →financial instruments held in the form of book entries with financial institutions. There, the rule that book entry securities collateral shall be governed by the law of the country in which the relevant account is maintained (Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements, [2002] OJ L 168/43) was implemented and generalized, beyond the terms of the Directive, by the Luxembourg law of 5 August 2005 on financial collateral arrangements, Mémorial A 2005, p 2212.

c) Corporations

The law applicable to corporations is the law of the corporation’s real seat, which is also deemed to be the company’s ‘national law’. The original (Belgian-inspired) provision of art 159 of the Luxembourg companies law of 10 August 1915, Mémorial 1915, p 925, provides that ‘any company whose principal establishment is in the Grand Duchy shall be subject to Luxembourg law, even though its constitutive instrument may have been executed abroad’. A later law (the law of 31 May 1999 on domiciliation of companies, Mémorial A 1999, p 1681, a law essentially concerned with the prudential regulation of the activity of company domiciliation, seeking to promote good practices in company domiciliation) added that ‘in case the domicile of a company is situated in the grand-Duchy of Luxembourg, it is of Luxembourg nationality and Luxembourg law is fully applicable to it’ and inserted a definition into art 2 of the companies law to the effect that the ‘domicile of a company’ is situated at its principal establishment or, as a later terminological change formulated it, at its ‘central administration’ (ie at its real seat), with a rebuttable presumption that the registered office of the company is identical to its real seat. Conversely, →companies having their real seat abroad will be treated as being subject to foreign law. Given the primacy of EU law, the principles defined in the Centros case of the ECJ (Case C-212/97 Centros Ltd v Erhvervs- og Selskabsstyrelsen [1999] ECR I-1459) on the effects of the freedom of establishment of p. 1companies created in another Member State will prevail over the rules of Luxembourg private international law (→Freedom of establishment/persons (European Union) and private international law).

d) Intellectual property

Choice of law in intellectual property matters, where it is not governed by art 8 of the Rome II Regulation, is based on the principle of lex loci protectionis interpreted as a bilateral choice-of-law rule on the basis of art 2 of the Paris Industrial Property Convention (Paris Convention for the Protection of Industrial Property, 20 March 1883, with later amendments, 828 UNTS 305) and art 5 of the Berne Convention (Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, completed at Paris on 4 May 1896, revised at Berlin on 13 November 1908, completed at Berne on 20 March 1914, revised at Rome on 2 June 1928, revised at Brussels on 26 June 1948, revised at Stockholm on 14 July 1967 and revised at Paris on 24 July 1971, 1161 UNTS 3 and amended in 1979 Treaty Doc No 99-27 and 1985, 828 UNTS 221).

e) Family law

The basic rule applicable to the various areas of family law is the rule introduced by the French Civil Code (and maintained in Luxembourg) submitting →personal status to the national law of the persons concerned (art 3(3) of the Civil Code formulates the rule in unilateral form, subsequently bilateralized by case-law: ‘[Luxembourg] laws on personal status and capacity govern Luxembourgers, even residing abroad’). The application of the law of their domicile (→Domicile, habitual residence and establishment) is a subsidiary solution, to which resort is had only if the application of their national law is impossible or inexpedient (stateless persons or refugees), or in the case of marital relationships between spouses of differing →nationalities. The introduction by the →Rome III Regulation (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) of the principle of (even limited) →party autonomy in the law of divorce, which in the courts’ practice is the most important area of family law, and the primary submission of divorce (in the absence of a choice of the applicable law by the parties themselves) to the law of the spouses’ habitual residence are indications of a paradigm shift of an importance similar to that of the introduction of the national law principle in 1804 (→Divorce and personal separation).

The formation of →marriages is governed by the Hague Marriage Convention of 1978, which has been ratified by only three states (→Australia, Luxembourg and the →Netherlands), but which is proving well-adapted to the present-day transition, in various jurisdictions including Luxembourg, from the traditional, heterosexual-only marriage to the admission of →same-sex marriages. For marriages celebrated in Luxembourg, the conditions for entering into a marriage can be, alternatively, those of the parties’ national laws or those of Luxembourg law, provided that at least one of the parties is of Luxembourg nationality or has his or her habitual residence in Luxembourg (art 171 of the Civil Code, implementing art 3 of the Hague Marriage Convention). And marriages entered into abroad will be recognized under the condition that: (i) they are valid under the law considered as applicable under the choice-of-law rules of the place of celebration; and (ii) the marriage does not contravene Luxembourg public policy (art 9 Hague Convention, which will prevail over the slightly stricter requirements of art 170-1 of the Civil Code relating to the recognition of foreign marriages of foreigners)). The form of marriage in Luxembourg is necessarily the civil form; the parties’ national law has no application to this question of form governed by mandatory formal requirements (→Formal requirements and validity), but religious forms of marriage are recognized, under art 9 of the Hague Convention, if they are legal under the law of the place of celebration abroad.

f) Succession

Under the traditional rule (of French provenance), now displaced by a unitary rule upon the entry into force of the EU Succession Regulation, →succession to the assets of deceased persons was governed in Luxembourg private international law by the law of their immovable property’s situs for their immovable assets, and by the law of their domicile for their movable assets.

g) Insolvency

Unless – which tends to be the normal case in practice – an insolvency falls within the scope of application of the EU bankruptcy regimes (the EU Insolvency Regulation recast (Council Regulation (EU) No 2015/848 of 20 May 2015 on insolvency proceedings, (recast) [2015] OJ L p. 1141/19) and also Directive 2001/24/EC (Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions, [2001] OJ L 125/15)), it will be governed by the traditional rules which Luxembourg case-law has defined in imitation of Belgian law as it was before the Belgian PILA of 2004: a strict regime of unity and universality of insolvency regimes, whether national or foreign. In both cases an insolvency can only be declared by the courts of the debtor’s domicile, but will have universal effects over all of the debtor’s assets. Luxembourg has (as of yet) not followed the lead of Belgium and has, unlike Belgium, not substituted to its traditional law a system based on the extension to non-EU insolvencies of the Insolvency Regulation system of secondary insolvency proceedings (→Insolvency, applicable law; →Insolvency, jurisdiction and vis attractiva).

However, the protection of the interests of financial markets appears to take precedence in Luxembourg over the traditional rules under which the effects of an insolvency will be governed by the lex fori concursus: art 20 of the law of 5 August 2005 on financial collateral arrangements, Mémorial A 2005, p 2212 excludes any effect on such arrangements of any type of national or foreign insolvency proceeding (→Insolvency, cooperation and recognition).

V. Recognition and enforcement of foreign judgments

Outside the scope of application of the EC’s free movement of judgments regime (and outside the Lugano Convention), the rules under which foreign judgments can be recognized and enforced are defined by Luxembourg case-law by reference to principles that have been devised by French case-law. →Reciprocity has never been a condition for judgment recognition. Révision au fond ceased to be practised in the 1960s. The condition that the judgment presented for recognition must have applied the same law that a Luxembourg court would have applied (or at least a law providing for an equivalent result) has been recently abandoned. The sole remaining conditions are therefore: (i) that the foreign judgment must be enforceable in its state of origin; (ii) that the foreign court must have had jurisdiction according to the Luxembourg rules on ‘indirect jurisdiction’ of foreign courts for recognition purposes (these rules have not yet been defined within precision, although French case-law is likely to be of use in defining them); (iii) that the judgment must not have been obtained by fraud; and (iv) that the judgment must not be repugnant to public policy (either substantive or procedural).

VI. Arbitration

Luxembourg’s arbitration law is a mixture, much in need of legislative reform, of the very old (some of the rules of the old French Code of Civil Procedure of 1806 remain in force) and of the relatively recent. It does not contain provisions on international arbitration, with the exception of a few provisions on the enforcement of arbitral awards rendered abroad. These awards will be declared enforceable by the president of the district court of their intended place of enforcement. The procedure applicable to this declaration of enforceability and to possible appeals is a procedure closely inspired by the original 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). Luxembourg is a party to the 1958 New York Convention (under art I(3) of that Convention, it has declared that awards will only be enforced on the basis of reciprocity), as well as to the 1961 European Arbitration Convention (European Convention of 21 April 1961 on international commercial arbitration, 484 UNTS 349).

Literature

  • Dietrich Bernecker, ‘Internationales Privat- und Prozessrecht im Großherzogtum Luxemburg’ (1962) 27 RabelsZ 263 (the first systematic study of Luxembourg private international law);

  • Gilles Cuniberti, Code de droit international privé luxembourgeois (2nd edn, Promoculture-Larcier 2014; 1st edn by Laurence Usunier and Bart Volders);

  • Alphonse Huss, ‘Chronique de jurisprudence luxembourgeoise’ [1971] J.Dr.Int’l 140;

  • Alphonse Huss, ‘De l’opportunité des codifications nationales et internationales en matière de règles de conflit’ in CH Beekhuis and others, Opstellen, aangeboden aan prof. Mr. SN van Opstall (Kluwer 1972);

  • Patrick Kinsch, ‘Chronique de jurisprudence luxembourgeoise’ (1995) I Bulletin du Cercle François Laurent 1;

  • Albert Weitzel, Georges Ravarani and Luc Weitzel, ‘Conflits de lois et de juridictions en droit luxembourgeois’, Jurisclasseur Droit comparé, Luxembourg, vol 3 (2001);

  • Jean-Claude Wiwinius, Le droit international privé au Grand-Duché de Luxembourg (3rd edn, Paul Bauler 2011) (the standard work on Luxembourg private international law; 1st edn by Fernand Schockweiler).