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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Slovakia

Natalia Stefankova

I. Sources of private international law

1. Major legislation

The establishment of an independent Slovak private international law was one of the many results of the political and social changes in the region of East European countries at the very end of the 20th century. Since the formation of the Slovak Republic on 1 January 1993, Slovak private international law has been an integral part of the autonomous system of Slovak law. p. 1Its cross-disciplinary nature supersedes every single part of Slovak private law and is closely connected with the legal provisions of civil substantial and procedural law, commercial law and family law. This cross-connection is based on the impact of Slovak conflict rules, whose structure is strongly influenced by the national private law provisions. According to art 72 of the Slovak Constitution (Ustava Slovenskej Republiky, 460/1992 Coll), the National Council (Narodna rada) is the sole constituent and legislative body of the Slovak Republic.

Although the connection between private international law and national civil law is evident, it is necessary to notice the independent legal adaptation concerning Act No 97/1963 Coll on Private International Law and Procedural Law (henceforth PILPL), which was passed by the National Assembly of Czechoslovak Republic on 4 December 1963 (in effect from 1 April 1964). The PILPL completely replaced Act No 41/1948 on Private International and Interterritorial Law and Status of Foreigners in the field of private law. It was the first ever legal adaptation referring to the conflict of law in Czechoslovakia (in effect from May 1948). The PILPL was until 1 January 1993 the common adaptation in Czechoslovakia. This period brought only a small number of amendments (there were three legal amendments which mostly concerned the changes regarding legal terms). When Slovakia was created as a single and independent country, the PILPL took on a new status, but the common contents of PILPL target the basic issues of conflict of laws (including special conflict rules for →personal status, property rights, contracts, family matters, employment; provisions on ordre public, renvoi and the solution of interterritorial conflicts) and procedural rules (including the international jurisdiction of Slovak courts, the recognition and enforcement of foreign judicial judgments, and basic provisions on →legal aid) remain.

The international procedural rules are covered in the PILPL and in Slovakian Civil Dispute Order of 21 May 2015 (160/2-15 Coll) (henceforth SCP) and Civil Out of Dispute Order from 24 May 2015 (161/2015 Coll) henceforth SODO. The PILPL covers, inter alia, the harmonized rules of jurisdiction in →civil and commercial matters, as well as the rules on the recognition and enforcement of foreign judicial decisions (art 37–68 PILPL). The process of harmonization brought some valuable assets, the most significant of which was the amendment by Act No 589/2003, which caused the important approach of Slovak law to the rules of European private international law. The jurisdiction rules on cross-border dispute solutions had been changed under the standard of Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1; →Brussels I (Convention and Regulation)). Because since 1993, the Slovak Republic, as an independent country, has been open to any kind of international cooperation, the national provisions have had to react to the increased number of cross-border disputes (eg the competence of the Centre for International Legal Protection of Children and Youth may represent a minor party in cases with a foreign element – art 26 SCP; provisions regarding the prompt return of children wrongfully removed – art 123[en]134 SODO).

2. International conventions

According to art 7 of the Slovak Constitution, international treaties on human rights and fundamental freedoms, international treaties whose executions do not require a law and international treaties which directly establish the rights or obligations of natural persons or legal persons and which were ratified and promulgated in a manner laid down by law shall have primacy over the laws. Moreover, the PILPL introduces a special regime of international conventions. Article 2 PILPL lays down that its provisions shall apply only if an international treaty does not provide otherwise.

Slovakia has created a wide network of agreement cooperation in the field of private international law. Bilateral agreements on legal assistance in civil, family and criminal matters have been concluded with Afghanistan (1981), →Albania (1959), Algeria (1981), →Austria (1961), Belgium (1984), →Bulgaria (1976), →Cuba (1980), Cyprus (1982), →the Czech Republic (1992), →France (1984), →Greece (1980), →Hungary (1989), →Italy (1985), →Korea (1988), Mongolia (1976), →Poland (1987), Portugal (1927), →Romania (1958), →Russia (1982 – currently valid for Armenia, Azerbaijan, →Belarus, →Kazakhstan, Moldavia, Russia, Tajikistan, Turkmenistan, →Ukraine and Uzbekistan), Syria (1984), →the United Kingdom (1924 – legal assistance in civil matters – and 1935 – legal assistance p. 1in civil procedure), →Vietnam (1982), Yemen (1989), Yugoslavia (1964 – currently valid for →Bosnia and Herzegovina, →Croatia, →Macedonia , →Montenegro and →Slovenia). Furthermore, bilateral agreements concerning the recognition and enforcement of judgments in civil, family and commercial matters have been concluded with →France (1984), →Spain (1987), →Switzerland (1926) and →Tunisia (1979 – including criminal matters).

Slovakia is a Member State of international organizations whose activities are considerable for the developing of the national rules of private international law. The most significant is the role of the →Hague Conference on Private International Law. Slovakia as a sole country has been a Member State since 26 April 1993. However, as the part of the Federal Czech and Slovak Republic, it had accepted the Statute of the Conference (Statute of 15 July 1955 of the Hague Conference on Private International Law, Hague Conference on Private International Law, in Hague Conference on Private International Law (ed), Recueil de Conventions – Collection of Conventions (1951–2009) (Insentia 2009) 2) on 29 May 1968. As of 1 June 1993, Slovakia became a member of the Conference (with retroactive effect as from 26 April 1993) and it has ratified the following conventions: in 1966, the Hague Civil Procedure Convention (Hague Convention of 1 March 1954 on civil procedure, 286 UNTS 265); in 1993, the Hague Maintenance Recognition and Enforcement Convention (Hague Convention of 2 October 1973 on the recognition and enforcement of decisions relating to maintenance obligations, 1021 UNTS 209); in 1976, the Hague Child Maintenance Convention (Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children, 539 UNTS 27); in 1976, the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241); in 1976, the Hague Traffic Accident Convention (Hague Convention of 4 May 1971 on the law applicable to traffic accidents, 965 UNTS 415); in 1976, the Hague Divorce and Separation Convention (Hague Convention of 1 June 1970 on the recognition of divorces and legal separations, 978 UNTS 399); in 1982, 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); in 2001, the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89); in 2001, the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 1870 UNTS 167; 32 ILM 1134); in 2002, the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189); in 2002, 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); and in 2003, the Hague Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375).

Moreover, Slovakia is a contracting party of a number of conventions concluded in 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 and 649 UNTS 330) since 1959, the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3) since 1959, the European Arbitration Convention (European Convention of 21 April 1961 on international commercial arbitration, 484 UNTS 349) since 1961, the UNCITRAL Limitation Convention (Convention of 14 June 1974 on the Limitation Period in the International Sale of Goods, 1151 UNTS 3; 13 ILM 952) since 1988, as amended by the Protocol of 11 April 1980 (1511 UNTS 99) since 1991, the CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3) since 1991, and the Vienna Convention on Consular Relations (1969 Vienna Convention on Consular Relations of 24 April 1963, 596 UNTS 261) since 1969.

Slovakia is also a contracting party of the conventions promulgated by the Council of Europe: the European Foreign Law Convention (European Convention of 7 June 1968 on information on foreign law, 720 UNTS 147), as amended by the Additional Protocol to the European Convention on Information on Foreign Law (of 15 March p. 11978, 1160 UNTS 529), both since 1997; 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) since 2001. The important contribution to the international sources of Slovak law is provided by international transport conventions: the CMR (Convention of 19 May 1956 on the contract for the international carriage of goods by road, 399 UNTS 189), which was ratified in 1975; and the 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>) ratified in 1997.

The most significant international treaty is the Rome Convention (Rome Convention on the law applicable to contractual obligations (consolidated version), [1998] OJ C 27/34) which took effect in Slovakia on 1 August 2006. Its role is relevant for determining the law applicable to contractual relations which had been established before the application of 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; →Rome Convention and Rome I Regulation (contractual obligations)). In accordance with art 2 PILPL, it gave the Rome I Convention preference until 17 December 2009 over the PILPL choice-of-law rules.

3. Significance of EU private international law

Slovak national rules that contained cross-border matters covered for many years by the PILPL were amended once the Slovak Republic joined the EU on 1 May 2004 by European acts harmonizing rules on jurisdiction and →choice of law in certain matters. The most significant were the Brussels I Regulation (as of 2015, 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))) and the Brussels II Regulation (Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses, [2000] OJ L 160/19) (since 2003, 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)) because of their impact on the cross-border procedural matters. However, practical judicial experience and public knowledge is still lacking. The application of EU private international law by Slovak judicial authorities is only slowly improving. Even though the EU Regulations are entirely and directly applicable in Slovakia, some Slovak courts still do not recognize the capability of their direct application. Legally binding acts of the EC and the EU shall have primacy over the laws of the Slovak Republic (art 7 of the Slovak Constitution). The Slovak PILPL, as amended by Act No 589/2003, changed its second part on international civil procedure to be much more connected on the procedural provisions of the EU (mainly the Brussels I Regulation). The rules concerning the international jurisdiction of Slovak courts, as the rules on the recognition and enforcement of foreign judicial decisions, were changed to harmonize the judicial proceedings in matters with a foreign element according to the PILPL and to bring it closer to the European meaning.

4. Role of case-law

In the Slovak legal system, there are no binding rules based on case-law. The court decisions are published in the Collection of Decisions and Standpoints of the Courts of the Slovak Republic. However, they are used only as an interpretative tool and the courts are actually influenced by previous judicial decisions. The most relevant is the decision procedure of the Supreme Court of the Slovak Republic, whose Judgment No 26/1987 determines the basic principles on private international law (this judgment was published by the Supreme Court of Czechoslovakia; however, its relevance for Slovak private international law still remains).

5. Doctrinal writing

Doctrinal writing is not a full-valued legal source of Slovak law. The judicial bodies formerly used such academic attitudes and p. 1opinions for the purpose of interpretation and legal argumentation.

II. History and development of private international law

When looking at the history of private international law (→Private international law, history of), it is necessary to consider this issue not only from the date of the formation of the Slovak Republic, but also with respect to the previous period of state history. As part of Czechoslovakia, Slovak civil law was under the strong influence of traditional Ugrian rules. While in the Czech countries, the choice of law was codified in the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch of 1 June 1811, JGS No 946/1811, as amended), in Slovakia there was no special written codification.

The Slovak rules came out particularly from the Ugrian laws, but strong influence has been made by the traditional judicial bodies. The choice-of-law rules in Czechoslovakia from 1918 to 1948 built the dualistic and not very compendious system of laws. Slovak choice-of-law rules were basically set down by the jurisprudence. The most important historical principles set down were as follows: the legal capacity of the person (→Capacity and emancipation) was governed by the law of the state of his →nationality; the rights relating to →immovable property were governed by the law of the place where the property was located; the rights related to movables were governed by the law of the state of the nationality of its owner; property rights were governed by the law of the place where the occurrence came about; family matters were governed by the law of the state of the person’s nationality; and, finally, →succession was governed by the law of the state of the testator’s nationality. The aim to unify Czech and Slovak laws to draw together the Civil Law in general, conflict rules included, was not successful. After 1945, the concept of sole written codification of choice-of-law rules dominated and because of that, in 1948 the sole private international law was promulgated.

III. Administration of private international law

1. Courts and non-judicial authorities

The administration of disputes with a foreign element is strictly provided for by the Slovak judicial authorities. There are no exemptions to the rule that the competence to deal with and decide the case is provided by the Slovak judicial bodies. Concerning the courts as general and arbitral, it is necessary to mention that property disputes with a foreign element may be proceeded by the arbitral courts. The administrations rules of judicial authorities are included in Act No 385/2000 Coll on judges and associate judges as amended; Act No 757/2004 on courts as amended and SCP.

2. Application of foreign law

There is one common principle in Slovakia regarding the application procedure of foreign law by the judicial bodies. This principle determines that the approach of the Slovak courts to the foreign law applicable in a certain case has to be the same as to the application of domestic law. The sphere of foreign law application is under strong influence of judicial practice (the most important judicial opinion is concerned in the SCD, which lays down the technical methods on application on choice-of-law rules, governing foreign law as well as the basic principles on judicial procedure in matters with a foreign element). The PILPL provides only in art 53 a small number of rules on the application of foreign law. These rules are central to the communication between the courts and the Slovak Ministry of Justice regarding the ascertainment of foreign law. The judicial authority has to take all necessary measures to determine the content of the applicable foreign law; if the content of the foreign law is not known to such an authority, it may request information to this effect from the Ministry of Justice (European Foreign Law Convention (1997), as amended by the Additional Protocol to the European Convention on Information on Foreign Law (1997)).

IV. Basic principles of jurisdiction

1. General structure

There is no specific regime designed to govern the jurisdiction of courts in cross-border disputes in cases where the defendant is not domiciled in an EU Member State (ie in cases covered by art 4(1) Brussels I Regulation (recast)). The national rules determining jurisdiction in cross-border disputes will apply. However, the Slovak legislator transposed, in general, the rules contained in the Brussels I Regulation (recast) into the general rules of the PILPL applicable for p. 1any cross-border dispute in Slovakia. As a main rule, the jurisdiction of Slovak courts is given if the defendant has his or its seat or residence in the Slovak Republic and, in matters related to property rights, if the defendant’s property is located in Slovakia (art 37 PILPL).

In addition, the jurisdiction of Slovak courts is also given in the following cases: (i) in matters relating to employment contracts, when the plaintiff is an employee residing in the Slovak Republic; (ii) in matters relating to →insurance contracts, when the plaintiff is an insurance holder or the insured and has a seat or residence in the Slovak Republic; (iii) in matters relating to →consumer contracts, when the plaintiff is a consumer having his or its seat or residence in the Slovak Republic; (iv) in matters relating to other contracts, if the goods were or had to be delivered, the services provided, or the works performed, in the territory of the Slovak Republic, otherwise if the →place of performance should have been in the territory of the Slovak Republic (art 37a PILPL).

The jurisdiction of the Slovak court is also given: (i) as regards claims for →damages from non-contractual relations, provided the incident resulting in the claim for damages occurred or might have occurred in the territory of the Slovak Republic; (ii) as regards claims for damages which are based on an act giving rise to criminal proceedings to the extent that the criminal proceedings are led by the Slovak authorities active in criminal procedure; (iii) as regards disputes relating to the operation or activities of an undertaking or branch (organizational unit) of a legal entity, provided it has its undertaking or branch located in the territory of the Slovak Republic (art 37b PILPL).

The jurisdiction of the Slovak court in relation to an individual may also be established by a petition of a participant: (i) if the claims in question are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments; (ii) as regards a counterclaim arising from the same facts on which the original claim, with respect to which the Slovak court has jurisdiction, was based (art 37c PILPL).

The Slovak court shall have exclusive jurisdiction in the following cases: (i) in proceedings which have as their object property rights in immovables or tenancies of immovable property, if the property is situated in the territory of the Slovak Republic; (ii) in proceedings concerned with the registration or validity of patents, trade marks, designs or other similar rights required to be deposited or registered, if the deposit or registration has been applied for, has taken place or is deemed under the rules of international law to have taken place in the territory of the Slovak Republic.

Article 37e PILPL contains provisions on prorogation of jurisdiction and special provisions on jurisdiction in family matters, matters of legal capacity, guardianship and tutorship (→Guardianship, custody and parental responsibility), presumption of death matters, inheritance, redemption of documents matters and provisions on exemption from the jurisdiction of Slovak courts.

2. Family matters

The jurisdiction of Slovak courts in family matters follows from arts 38–41a PILPL. However, the impact of the Brussels IIa Regulation on the jurisdiction in matrimonial matters is significant. The structure of jurisdiction rules is constructed in a similar way as the choice-of-law rules in family matters. The scope of jurisdiction covers the matters regarding divorce (→Divorce and personal separation), annulments of →marriage, maintenance (→Maintenance obligations), parental responsibility (including the matters of filiations; →Guardianship, custody and parental responsibility) and →adoption.

According to art 38 PILPL, Slovak courts shall have jurisdiction in matrimonial matters (divorce, marriage annulment or determination as to whether a marriage does or does not exist) if at least one of the spouses is a Slovak national. If none of the spouses is a Slovak national, Slovak courts shall have jurisdiction: (a) if at least one of the spouses resides there and the decision is recognizable in the states of origin of both spouses; or (b) if at least one of the spouses has resided in the Slovak Republic for a substantial period of time; or (c) provided such ground of invalidity of marriage is concerned on account of which the marriage must be annulled under Slovak law even without a motion to this effect, if both spouses live there.

In matters of maintenance, the Slovak courts have jurisdiction if either the maintenance entitled or the maintenance obligor has its residence or habitual residence (→Domicile, habitual residence and establishment) in the Slovak Republic (art 38a PILPL). Concerning matters of parental responsibility, the main p. 1factor for the establishment of jurisdiction is the habitual residence of minor or refugee children in the territory of the Slovak Republic (art 39 PILP).

The same is true if the habitual residence cannot be determined. The protection rules relating to the proceeding of necessary measures for protection of the child or his property provide the Slovak court with the competence to perform it according to Slovak substantial law, even if there are no conditions for jurisdiction. The Slovak court must inform the court of the habitual residence of the child about these measures (art 39(3) PILPL). These rules correspond to the scope of the Maintenance Regulation.

The special regime goes for the parental responsibility of spouses in respect of their common child (art 39(4) PILPL). If the Slovak courts have the competence to decide in matrimonial matters and the child is habitually resident in Slovakia, it also has the jurisdiction over the question of parental responsibility of spouses in respect of their common child. Additionally, this is also the case if at least one of the spouses has parental responsibility in relation to the child and the jurisdiction of the Slovak courts has been accepted by the spouses, and the exercise of such jurisdiction is in the best interests of the child.

In matters of filiations (art 40 PILPL), the Slovak court has the jurisdiction to determinate parentage, if the defendant has according to the SCP the court with general jurisdiction. Conversely, if there is no court of general jurisdiction in Slovakia, but one of the parents is a Slovak national, the court determined by the Supreme Court of Slovak Republic will perform the case.

The special jurisdiction of the Slovak court is established in matters of cross-border →adoptions (art 41 PILPL). The national courts have jurisdiction if the adopter is a Slovak national. If the adopters are a married couple, it suffices if only one of the spouses is a Slovak national and resides in the Slovak Republic. If neither the adopter nor either of the adopting spouses is a Slovak national, the Slovak court shall have jurisdiction: (a) if the adopter, or at least one of the adopting spouses, resides there and if the court decision is recognizable in the state of origin of the adopter or the adopting spouses; or (b) if the adopter, or at least one of the adopting spouses, has resided in the Slovak Republic for a substantial period of time.

The exclusive jurisdiction of the Slovak court is constructed in relation to the adoption of a child who is a Slovak national and who has his habitual residence in the Slovak Republic (art 41a PILPL). Only a Slovak court may declare the adoption of children with Slovak nationality. Subsidiary, the Slovak court also has jurisdiction to declare adoption in circumstances where, at the time of the decision making, the child no longer has his habitual residence in the Slovak Republic, but the court has taken the decision on the placement of the minor child in the care of future adoptive parents.

3. Succession

According to arts 44–45 PILPL, the Slovak court shall have exclusive jurisdiction in matters of →succession if the deceased was a Slovak national at the time of his death. In respect of property situated abroad, however, the Slovak court shall proceed in the matter only if such property may be released to the Slovak authorities or if the other state recognizes the legal effects of such decisions taken by the Slovak judicial authorities. The Slovak court shall proceed in a succession matter of a foreign national related to an estate situated in the Slovak Republic: (i) if the state of the deceased person’s →nationality neither releases the property of Slovak nationals to Slovak courts nor recognizes the legal effects of their decisions, or if that state refuses to settle the estate or fails to respond; or (ii) if the deceased had his residence in the Slovak Republic and an heir residing there so requests; or (iii) in all cases where immovable property situated in the Slovak Republic is concerned. In all other cases the Slovak court shall only take measures necessary for the protection of the foreign national’s estate. There are no international conventions on succession under Slovak law; however, the bilateral agreements on legal assistance beside the conflict rules on succession provide also the procedural questions.

4. Legal capacity and guardianship, declaration of death

In matters of legal capacity (restriction or deprivation) as well as guardianship, the jurisdiction of Slovak courts determinates in cases where the person has his habitual residence in the Slovak Republic; in any other case, the Slovak court may only take measures necessary p. 1for the protection of the person or his property and shall inform thereof the competent authority of the state of the person’s habitual residence. Such measures shall be taken by the Slovak court in the application of provisions of the Slovak substantive law. Exclusive jurisdiction is stated in relation to the death declaration of a missing Slovak national (art 43 PILPL). Similar proceedings regarding a foreign person are possible according to the Slovak substantive law with legal effects limited to persons permanently resident in the Slovak Republic and to the property situated there.

V. Basic principles of choice of law

1. General provisions

Choice of law generally falls within the wide scope of the PILPL. However, a special regime is provided for by the CISG for all international sales contracts under Slovak jurisdiction. Slovakia joined the →CISG with effect from 1 January 1993 (Announcement of the Department of Foreign Affairs of Czechoslovakia No 160/1991 Coll), with a reservation pursuant to art 95 CISG. When Czechoslovakia ratified the CISG in 1990, it declared that it would not consider itself bound by the provisions of art 1(1)(b) CISG. Even if the validity of this reservation is questionable (because the Czech and Slovak Republics in their declarations of succession in 1993 did not confirm the reservation of 1990), the application of the CISG in Slovakia cannot be brought about via the rules of choice of law.

General provisions relating to choice of law are to be found in arts 33–36 PILPL. Article 33 concerns the rule applicable in cases where the person has more nationalities (dual citizenship) and also in cases where the person has no nationality or his nationality is unclear (uncertain citizenship) (→Nationality). If a person, at the relevant moment, is a citizen of Slovakia and another state, the decisive one is the Slovak nationality. The Slovak judicial bodies consider such a person as a Slovak national. Alternatively, if a person has different citizenships, none of which is Slovak, his citizenship will be the last one he acquired. Otherwise, if a person has no nationality or his nationality cannot be determined, he shall be regarded as a national of the state of his residence or of the state where he was located, or, if neither of these is applicable, he shall be considered a Slovak national.

Article 35 PILPL relates to the application of foreign choice-of-law rules (→renvoi): remission and transmission are allowed in Slovak law if it is reasonable in certain circumstances (eg in property matters, but not in relation to personal status). →Public policy defines art 36 as the tool to reject the law of the foreign state if its provisions are contrary to the social and state principles of Slovakia and its legal order. The scope of general provision is not very wide; there are no provisions regarding →classification, →evasion of laws (fraus legis) or simulation, as the provisions regarding →incidental (preliminary) questions.

2. Personal matters

The PILPL makes no distinction between a natural person and a corporation. According to art 3 PILPL, the personal statue of every person governed. A ‘person’ (osoba) is generally seen in practice not only as a natural person, but as a legal person (or corporation) too. The principle of nationality used by the PILPL is perceived in the case of a corporation as governed by the law of the state under the law of which the corporation was established. For the personal issues of corporation it is necessary to take into account Act No 513/1991 Coll on Commercial Codex as amended. Its provisions (arts 22–27) regulate questions relating to the status of a foreign person (zahranicna osoba), who is a business person established under foreign law with intent to carry out business in the territory of the Slovak Republic.

The general choice-of-law rule in art 3 PILPL provides that the legal capacity of a person shall be governed by the law of the state of his nationality, unless the present Act provides otherwise. The special regime on legal capacity is provided for in family matters (art 19 PILPL in relation to matrimonial capacity and art 18 PILPL in relation to testamentary capacity). In these cases it is not possible to use the subsidiary rules under which the application of Slovak law prevails if the person with foreign nationality conducts a legal act in the territory of Slovakia.

3. Property rights

Slovakia uses the compact approach to the choice-of-law rules regarding property rights (→Property and proprietary rights). The provision states the law of the place where the property is situated as the specific factor for p. 1governing the rights to immovable or movable property (art 5 PILPL). However, the special choice-of-law rules deal with the establishment and termination of rights relating to movable property; according to art 6 PILPL, it shall be governed by the law of the place where the movable property was situated at the time of the establishment or termination of these rights. In the case of res in transitu, under the terms of contract, the establishment and termination of such rights are governed by the law of the place from where such property was dispatched. The essential condition provided in the case of rights relating to →immovable property is the public record of such a right. Under art 7 PILPL, provisions concerning situations where entries in public records are in force where the immovable property is situated shall apply even in cases where the legal ground for the establishment, termination, restriction or transfer of a recorded right is governed by a different law. Another special choice-of-law rule conducts the matters relating to the transfer of possession; the institute of →prescription is governed by the law of the place where the property was located at the beginning of the period.

The →classification of movable and immovable property is the subject of court practice; consequently, it depends on the interpretation of national rules, which is a part of Act No 40/1964 Coll Civil Code, as amended (SCC). However, it is necessary to take into account the role of some bilateral agreements which lay down superior classification rules regarding property.

4. Obligations

The choice-of-law rules relating to →contractual obligations are based on the principle of →party autonomy. The main legal source is covered by the PILPL; however, its scope of application is subordinate to the matters excluded from the scope of the Rome I Regulation. The scope of the →choice of law in matters of contractual obligations, according to arts 9–14 PILPL, is based on the fact that the parties are entitled to do so verbally or tacitly if, with regard to the circumstances, there is no doubt as to their expressed will.

In the absence of the parties choosing the applicable law, their contractual relations shall be governed by the law whose application corresponds to the reasonable regulation of the relationship concerned (art 10 PILPL). Otherwise, contracts are governed by the law of the state in which both parties have their seat; if their seat is not in the same state and the contract was concluded with both parties present, the contract shall be governed by the law of the place where the contract was concluded; if the contract was concluded between absent parties, it shall be governed by the law of the seat of the party accepting the offer for the contract.

Non-contractual obligations are governed by the law of the place where the damage or harmful event occurred. The law has to be chosen by the court which deals with such a matter. Article 15 PILPL is applicable to cross-border non-contractual relationships not covered by the →Rome II Regulation (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).

The special choice-of-law rules cover the individual contract of employment (art 16 PILPL). All relationships arising out of an individual contract of employment are governed by the law chosen by the contract parties. Conversely, in the event of a lack of party agreement, the contract is governed by the law of the place where the employee works. However, if the employer is an organization which has its seat in a different state from that where the employee’s contracted place of work is, the law of the seat of the organization shall apply, unless the employee has his residence in the state where he worked. Concerning the employment relationships of transport workers: (i) in the case of rail or road transport, the law of the seat of the employer is applicable; (ii) in the case of river and air transport, the law of the place of registration is applicable; and (iii) in the case of maritime transport, the law of the state under whose →flag the transport is carried out.

5. Succession

According to the unitary approach of the PILPL, the law of the legator’s →nationality at the time of his death governs all questions related to →succession. In contrast, special choice-of-law rules govern the testamentary capacity and the form of testament (art 17 PILPL). Testamentary capacity is governed by the nationality of the legator at the moment of testament manifestation; and the form of p. 1testament is governed by the law of the nationality of the legator at the time he made the testament. However, there are some exemptions to pay tribute to the dualistic (or scissionist) approach in bilateral agreements binding the Slovak Republic (art 18 PILPL). While the PILPL rules refer to nationality as the sole factor in inheritance matters (as the succession of movables so the immovable property), some bilateral agreements state that the succession of immovables is governed by the law where the property is situated, while movables are governed by the nationality of the legator.

6. Family law

There are two main categories of family matters governed by the choice-of-law rules under the PILPL. The first category relates to choice-of-law rules regarding the conclusion of a →marriage. The legal capacity of a person to marry (→Capacity and emancipation) and the validity of the marriage are governed by the law of the state of nationality of that person (art 19 PLPL). The conclusion of a marriage is governed by the law of the place where the marriage was celebrated (art 20 PILPL). Under art 20a PILPL, a marriage concluded abroad by a Slovak national before a non-Slovak authority is valid provided it is valid in the state where it was concluded and none of the circumstances excluding the conclusion of marriage under the Slovak substantive law existed. Personal and property relations between spouses are governed by the law of the state of their common nationality (in any case the Slovak law is applicable) (art 21 PILPL). Dissolution of marriages in the form of divorce (under Slovak law, divorce is the exclusive form of marriage cancellation) is governed by the law of the state of the common nationality of the spouses at the time of the initiation of the divorce proceedings (in cases where the spouses have different nationalities, Slovak law is applicable) (art 22 PILPL). Additionally, the subsidiary role of Slovak law in matters of marriage cancellation is also relevant if the applicable foreign law would not permit divorce or only does so under extremely difficult conditions. The impact of 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) in the area of the law applicable to divorce and legal separation is relevant.

The second category includes the choice-of-law rules applicable in matters related to the relationships between parents and children (arts 23–27 PILPL). The scope of the PILPL is very wide in this context. There are provisions regarding filiations (maternity or paternity determination) which are governed by the law of the child’s nationality acquired by birth; relations between parents and children, including the attribution or extinction of parental responsibility, are governed by the law of the habitual residence of the child (these include matters related to minor refugees – the place of their habitual residence for this purpose is the Slovak Republic); maintenance obligations of parents in respect of their children are also governed by the law of the child’s habitual residence (other maintenance obligations are governed by the law of the habitual residence of the maintenance entitled).

Although the Slovak Republic is a contracting party of the Hague Adoption Convention (→Adoption), there are some national choice-of-law rules applicable if the application of the Hague Adoption Convention is excluded. Under art 26 PILPL, adoption is governed by the law of the state whose national is the adopter (if the adopters are spouses with different nationalities, it is necessary to take into account the conditions for adoption specified by the laws of both). The habitual residence of the child is a crucial factor for governing pre-adoption care, but the child’s nationality is relevant when looking at the consent of the child for his adoption.

In matters of guardianship (→Guardianship, custody and parental responsibility), the factor of habitual residence of the minor or incapable adults prevails. The conditions for the establishment or termination of guardianship are governed by the law of habitual residence, while the relationship between both subjects is governed by the law of the forum of the guardian court.

VI. Recognition and enforcement of judgments

The provisions regarding the recognition and enforcement of foreign judgments are a part of the PILPL. However, the Slovak courts take these provisions into account only if there is any bilateral or multilateral international agreement p. 1with the same subject matter. Only in matters excluded from the Brussels I Regulation (recast) or the →Brussels IIa Regulation are the PILPL rules applicable.

The PILPL states in art 68a the jurisdiction to proceed in the recognition or enforcement of foreign judgments to Slovak national courts: (i) to the Regional Court in Bratislava for recognition of foreign decisions in matrimonial matters, in matters involving the establishment (determination or contestation) of parentage or the →adoption of a child; (ii) for recognition of foreign decisions on the placement of or contact with the child, the Slovak district court of the habitual residence of the child and, in absence thereof, the district court for the residence of the child – where no such court exists, the District Court Bratislava I; (iii) the court which has jurisdiction to order the enforcement of a judgment or to issue a mandate for execution for recognition of other decisions.

The proceeding on recognition shall commence by an application of the person who is referred to as a party in the foreign decision and, in matrimonial matters, in matters involving establishment (determination or contestation) of parentage or adoption of a child also by a person who can manifest a legal interest in the matter. If the applicant has his residence or seat abroad, he shall choose a representative who has residence or a seat in the Slovak Republic for the purposes of the →service of documents.

The application has to include certain elements, such as identification of the court, of the applicant, of the matter it relates to and the purpose of the application; it is necessary to specify the foreign decision, the name of the authority of origin, the date when the foreign decision became binding or provide information on its enforceability and it must include a list of all supporting documents attached to the application (art 68b PILPL).

Slovak courts are bound by the meritum of the matter and they are not allowed to investigate the subject matter. If the foreign decision is consistent with the provisions of the PILPL, the court decides about the recognition and the preceded enforcement of it. In matrimonial matters involving the establishment (determination or contestation) of parentage or the adoption of a child, the court shall decide on the application for recognition of a foreign decision by a judgment; in all other cases it shall decide by a resolution. In any other case, the court refuses the recognition. If the foreign decision contains more than one verdict, the court shall recognize the foreign decision only to the extent possible or required. A partial recognition of the foreign judgment may also be evoked by the applicant.

According to art 64 PILPL, a foreign decision can be neither recognized nor enforced if: (i) its recognition is pre-empted by the exclusive jurisdiction of the Slovak authorities or if in the application mutatis mutandis of the Slovak provisions on jurisdiction, the foreign authority would have had no jurisdiction in the matter; (ii) it neither has res judicata effects nor is enforceable in the state of origin; (iii) it is no decision on merits; (iv) the party against whom recognition of the decision is sought has been deprived by the foreign authority of the possibility of participating in the proceedings before it (in particular, he was not duly served the summons or the document instituting the proceedings) – however, the court shall not review this condition if the decision was duly served on the party and he has not appealed it or where the party has declared that he does not insist on the review of this condition; (v) the Slovak court has issued a decision, which has res judicata effects, in the matter, or an earlier foreign decision in the same matter was recognized or is recognizable in the Slovak Republic; (vi) the recognition would be contrary to Slovak →public policy (ordre public).

VII. Arbitration

Since the establishment of the Slovak Republic on 1 January 1993, arbitral proceedings were still regulated by the 1963 Czechoslovakian Arbitration Act, which prohibited domestic arbitration for entities that were not state-owned. The entry into force of Act No 218/1996 Coll on Arbitration re-introduced the possibility for parties to resolve domestic disputes by way of arbitration. However, contrary to the legislators’ expectations, the 1996 Arbitration Act did not cause a significant increase in the number of domestic arbitral proceedings.

The 1996 Arbitration Act was replaced by Act No 244/2002 Coll on Arbitration as amended, which entered into force on 1 July 2002 (henceforth SAA). Arbitral proceedings p. 1can be conducted under the auspices of an arbitral institution. Alternatively, they may be conducted on an ad hoc basis, in which the parties administer the arbitral proceedings themselves. The SAA governs the resolution of proprietary disputes arising out of commercial or civil relationships, both at a domestic and an international level, when the seat of arbitration is in Slovakia. The New York Convention and the European Arbitration Convention had significant influence on the development of the SAA (→Arbitration, recognition of awards).

Literature

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  • Miloš Haťapka, ‘K problému spätnej účinnosti európskych nariadení v oblasti právomoci súdov a vzájomného uznávania a výkonu rozsudkov v civilných veciach’ (2005) 57 Justičná revue no 1, 87;

  • Miloš Haťapka, ‘K niektorým zásadným aspektom pôsobnosti nariadenia Brusel I’ (2007) 59 Justičná revue nos 6–7, 902;

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  • Jozef Zámožík, Pavol Sojka, Petra Príbelská, Martina Uhliarová and Róbert Dobrovodský, Civilné právo procesné (Aleš Čeněk 2013).