HPI Kualifikasi & Titik Taut

Summary

The lecture discusses key concepts in International Private Law (HPI), including jurisdiction determination (forum), applicable law, and qualifications. It revisits principles like actor sequitur forum rei and discusses how applicable law is decided based on domicile or nationality. The lecture also covers law qualification methods (Lex Fori, Lex Causae), the concept of points of attachment (primary and secondary), and how these factors influence which law applies in specific cases, like marriage or contracts. It ends by outlining how to determine whether a case involves HPI and the process for resolving such cases effectively.

Takeaways

• 📜 HPI regulates forum selection for legal cases, often based on the domicile of the defendant or plaintiff when the defendant's domicile is unknown.
• 🏢 Property forum selection in HPI depends on whether the asset is movable or immovable, with specific principles like 'Rita resite' for immovable assets.
• ⚖️ Applicable law in Indonesia is still largely determined by Article 16 AB, which follows the nationality principle, though domicile is considered in common law countries.
• 📜 Contracts and legal actions are governed by the principle of 'Lex loci' or the place of the legal act or contract.
• 👰 Marriage law follows 'Lex loci celebrationis,' meaning the law of the place where the marriage took place.
• 🧑‍⚖️ Two types of qualifications in HPI are 'Lex Fori' (classification based on the law of the forum) and 'Lex causae' (classification based on the applicable foreign law).
• 📊 Analytical or autonomous qualification in HPI aims for a system detached from national laws, though practical implementation is challenging.
• 📍 Primary connecting factors (TTP) are facts that show the presence of a foreign element in a case, such as citizenship or cross-border transactions.
• 🗝️ Secondary connecting factors (TTS) directly indicate the applicable law, like the place where a marriage or contract was performed.
• 🔍 The process of HPI case resolution starts with determining whether the case involves international elements, then determining the forum, applicable law, and finally, case resolution.

Q & A

What is the meaning of 'forum' in the context of International Private Law (HPI)?

'Forum' in HPI refers to the court or legal jurisdiction where a case is heard. It can be based on the domicile of the defendant or other factors like where the property is located or the action took place.

How does HPI determine the applicable law when the domicile of the defendant is unknown?

If the domicile of the defendant is unknown, the forum can be based on the domicile of the plaintiff, meaning the court in the plaintiff's location will take the case.

What is the principle of 'Lex Situs' in HPI?

The principle of 'Lex Situs' means that the applicable law for immovable property is the law of the location where the property is situated, while for movable property, the law follows the person's domicile or location.

What are the key principles for determining the applicable law for legal actions in HPI?

In HPI, the applicable law for legal actions can be determined by the location where the action occurred (locus delicti) or where the impact of the action took place (locus damni).

What are the two main types of qualification in HPI?

The two main types of qualification in HPI are Lex Fori, which classifies facts according to the legal system of the forum, and Lex Causae, which classifies facts based on the law deemed most appropriate for the case, even if it is foreign law.

What is the gradual qualification approach in HPI?

The gradual qualification approach in HPI first applies the law of the forum and then progressively refines the classification to identify the most suitable law, which may include foreign laws.

What is the significance of 'Titik Taut Primer' (Primary Connecting Point) in HPI?

'Titik Taut Primer' refers to the key facts that indicate the involvement of foreign elements in a case, such as differences in citizenship or domicile between the parties involved, making the case subject to HPI.

What role does 'Titik Taut Sekunder' (Secondary Connecting Point) play in HPI?

'Titik Taut Sekunder' helps determine which law should be applied to the case by looking at specific factors like where a marriage took place, where a contract was signed, or where property is located.

How does HPI handle cases involving contracts between parties from different countries?

HPI considers where the contract was signed and where it will be performed. The applicable law could be from the country where the contract was created or where it is being enforced.

What are some examples of foreign elements that can make a case subject to HPI?

Examples include a marriage between individuals of different nationalities, a commercial transaction between companies from different countries, or property located in a foreign country. These foreign elements make a case subject to HPI.