The Transformation of European Private
International Law
A Genealogy of the Family Anomaly
Alberto Horst Neidhardt
Thesis submitted for assessment with a view to obtaining
the degree of Doctor of Laws of the European University Institute
European University Institute
Department of Law
The Transformation of European Private International Law
A Genealogy of the Family Anomaly
Alberto Horst Neidhardt
Thesis submitted for assessment with a view to obtaining
the degree of Doctor of Laws of the European University Institute
Examining Board
Professor Ruth Rubio Marín, Universidad de Sevilla/EUI (Supervisor)
Professor Horatia Muir Watt, Sciences Po, École de droit (External Supervisor) Professor Robert Wai, Osgoode Hall Law School
Professor Kerry Rittich, University of Toronto, School of Law
© Neidhardt, 2018
No part of this thesis may be copied, reproduced or transmitted without prior permission of the author
Researcher declaration to accompany the submission of written work Department of Law – LL.M. and Ph.D. Programmes
I Alberto Horst Neidhardt certify that I am the author of the work ‘The Transformation of European Private International Law, A Genealogy of the Family Anomaly’ I have presented for examination for the Ph.D. at the European University Institute. I also certify that this is solely my own original work, other than where I have clearly indicated, in this declaration and in the thesis, that it is the work of others.
I warrant that I have obtained all the permissions required for using any material from other copyrighted publications.
I certify that this work complies with the Code of Ethics in Academic Research issued by the European University Institute (IUE 332/2/10 (CA 297).
The copyright of this work rests with its author. Quotation from this thesis is permitted, provided that full acknowledgement is made. This work may not be reproduced
without my prior written consent. This authorisation does not, to the best of my knowledge, infringe the rights of any third party.
Abstract
This thesis originates in a ‘family anomaly’ in European private international law. Conflict experts have observed a methodological shift towards regulatory and policy considerations in transnational economic relations. Fears of the dangers of an unregulated market have generated policy-oriented rules and overriding mandatory provisions. Experts are generally supportive of this paradigm shift. They reject the view that conflict of laws consists of a set of ‘neutral’ techniques designed to protect decisional harmony and parties’ expectations, the classical objectives of private international law. Some regard this as evidence of a long-awaited ‘European Conflicts Revolution’. A paradigm shift is also occurring in the law governing cross-border family relations. Here, however, changes take the opposite direction as party autonomy and the method of recognition are being progressively constitutionalised. In contrast with cross-border economic matters, policy-oriented rules and mandatory norms evoke the ancien régime and the exceptional characterisation of family relations that became dominant in the 19th century. Autonomy and recognition are popular because they come
across as technical devices that liberate individuals from conservative social forces. For some, the contemporary turn indicates an evolutionary movement from government control to self-determination, ‘from status to contract’. Rather than portraying the family anomaly as part of a methodological revolution or as an evolutionary progress, this study advances a transformative thesis. Contrary to what is assumed, this study shows that private international law does not consist of technical rules and methods that develop in isolation from cultural and political processes. Tracing a genealogy of the law governing cross-border relations from the medieval to the contemporary age indicates that private international law constitutes an instrumentum regni which is transformed by dominant ‘modes of thought’. Ideas and assumptions which prevail in legal consciousness have shaped the boundaries and functions of conflict of laws. In turn, the law governing cross-border relations has played a crucial role in articulating and consolidating sovereign power. In this light, the thesis shows that the family anomaly reflects the renaissance of ideas dating back to the age of classical legal thought, and most notably the contraposition between the family and the market, and their adaptation to a new cultural and institutional environment. It suggests the rise of a post-national institutional model which is illustrated by the profound redefinition of the way in which individuals form and dissolve civil and political bonds through conflict rules.
Acknowledgments
Some years ago, I embarked on a journey into the unknown. Although challenging and frightening at times, undertaking a PhD has been an exhilarating and life-changing adventure. As is with my physical travels, so it has been with my intellectual ones; I would not have reached my destination without the guidance of persons gifted in equal parts with knowledge, patience and kindness. I would like to express my most sincere gratitude to Horatia and Ruth, who encouraged me to never abandon the path that my intuitions and beliefs led me to, but also made sure that the many exciting digressions of my wandering brain did not lead me astray. I would like to thank Michael, for he has equipped me with the necessary mental faculties to be able to complete my journey, the capacity to observe and to reflect, and has taught me the true meaning of the words ‘erudition’ and ‘generosity’. I take full responsibility for the mistakes and inaccuracies that can be found in this bulky work that gives an account of my adventure, including its biblical size, but the good that lies in it would not be there without their advice and unconditional support. I owe my success entirely to them.
On my journey, I have had the privilege to be accompanied by many intellectual giants. I am indebted to Professor Robert Wai and to Professor Kerry Rittich for having provided invaluable comments on my work and for having accepted to take part in the thesis defence at short notice. I would like to express my deepest appreciation for the cultural and professional environment that I have found in the Law Department of the European University Institute. Professor Hans Micklitz, Professor Dennis Patterson and Professor Loïc Azoulai are among the finest and most curious minds I have come across in many years. May they continue to feed the thought of many others after mine at the EUI and elsewhere. A functioning brain would be purposeless without a beating heart. Thank you, Eleonora and Matteo, and the administrative staff of the EUI, for having dealt with the Kafkaesque procedures in which I have frequently got stuck in the past years and more recent months. I am also grateful for the beneficial visiting period in the Faculty of Law of the University of Padua and for the constructive exchanges I had there with Professor Bernardo Cortese and Professor Christian Kohler.
Half-way through my journey I have had the opportunity to work for Unit C2 of DG JUST of the European Commission. Far from being an inaccessible fortress of insensitive technocrats, I have encountered in Brussels a group of individuals who, despite the immense political pressure and their vested personal interest, are still committed to realise and defend the freedom which this dissertation discusses, the liberty to move freely across geographical and jurisdictional borders. In times of great
political uncertainty, their ingenuity and competence, though mostly unnoticed and often insufficient to balance out the artificial, irrational and unjust obstacles to free movement faced by many European citizens and international families, give me a grain of hope that in the future, humans will never again be treated as foreign in their own lands. I would especially like to thank Dr. Sandrine Musso-van der Velde, a fellow EUI graduate, a dedicated lawyer and a passionate intellectual, for the wonderful walks and enriching conversations we shared in Rue de Luxembourg and Parc de Bruxelles.
Right when I felt that my energies were drawing to an end, I have had the privilege of spending seven regenerating and fulfilling months as visiting fellow at the Law School of Sciences Po. In Paris, I have discovered an immensely rich and diverse cultural habitat and an entertaining office populated by beautiful minds who have travelled from every corner of the planet to resist political and intellectual darkness with the force of their ideas, convictions and sense of humour. I especially wish to express my gratitude to Louis, Mohammed, Bruno, Ghazal, Diego, Ishupal and, last but not least, my ‘doppelganger’ Alberto for never making me feel like a guest. I also want to thank the staff of the library of the EUI, Ruth and Machteld in particular, for their indefatigable help and for having responded positively to all my bizarre requests for ancient manuscripts and family law treatises, curiously most of them available only in one copy which is jealously guarded in some remote archive in Germany.
I believe that the true value of my PhD is to be measured in terms of the friendships that now bind me to my travel companions. All those whom I have met on the way have left me with something memorable. Many have directly or indirectly contributed to the success of this journey. I want to thank Tleuzhan, Emma, Vasyl, Liam, Virginia and Marie. It has been a gratifying and unforgettable experience to speak in Venetian dialect with a Kazak, to discuss of Palestine with an Irish, to play chess on a Florentine terrace with a Ukrainian, to learn about European politics from a Canadian, to debate migration policies with a fellow Italian and to discover Florence and its surroundings with a Swiss. I also want to thank Davide, Niccolò, Koen, Marcin, Noelle, Chiara, Mariana, Nuria and Elisa. It has been a real pleasure to break down the monotony of academic life in your company; watching a football game in Florence or Harlem, sharing a glass of wine in Paris, downing several pints of beer in Finnegan’s or riding our bikes in the Chianti hills. I also want to thank Alberto Caselli for his daily newsletter: true genius can only be found behind playfulness, and there is abundance of it in the lower ground floor of the EUI library!
With some, I have shared more than I could have ever imagined and desired at the beginning of this journey. Among them are the presidents, rotating captains and members of the countless teams I have played for during the Coppa Pavone: Union Birra, Hurrikeynes, Inglorious Ballstars and Montecarlas. I came as a stranger – twice, in the case of Montecarlas – and I have left as a friend. I also want to express my most sincere gratitude to Kathinka, John Erik, Caterina, Laura and Virginia and other members of the Refugee Initiative. It is true that one always gets more in return for what ones gives to others. Dear Moussa, Diarra and Doman, may you continue to make fun of my French and to teach joy and resilience to me and the rest of the world. I also want to thank those who helped me to kick-start the Social Garden experience, among them Linda and Daniela. We should never abandon ourselves to either fatalism or optimism: il faut cultiver notre jardin!
For those who have given shape and full life to this journey, I have developed feelings of friendship, trust and affection. Among them are the many members of the Squadra Fantastica. Alexander, Simon, German, Metin, Damien, Leo, Roberto, Marco, Cosimo, Julian, Ludvig, Albert, Patrick, Federico, Francesco, Vincent, Gabo, Luis, Jonas, Dieter, Pupillo, Kaiser, Ozgur, Lorenzo, Reto, Tim, Jonathan, Simon, Aleksander, Oliver, Simon S. and the many others with whom I have shared memorable victories, a few inexplicable losses, and even a furious battle of fists and kicks in Lastra a Signa: I owe you the best football of my life, on and off the pitch! Among them is Ilaria, the first person I spoke to in Badia Fiesolana who immediately convinced me of having made the right choice. Among them is Magnus, with whom I shared an otherwise anonymous space, designed under the penetrating and long-lasting influence of soviet architecture. Thank you, because you have refreshed and coloured my stay in Florence with many memorable beers and dinners. I want to thank Khaled, who spent many sleepless nights with me in front of a chessboard. Those nights have paved the way for a brotherly love that neither distance nor deprivation of sleep will ever undermine.
Among them is Jotte, whose pedalling might is matched by mental brilliance. I thank you for having patiently waited for me at every kilometre or so in our many bicycle trips around Italy as well as in our numerous conversations. I want to thank Edurne, la profesora más carismática que haya jamás encontrado en mi vida académica. Has sabido tolerar mi pobre español y me has brindado buen vino e incluso mejor comida! I want to thank Elie who, despite his questionable support for football divas and petroeuros, has demonstrated that even under the skin of the most cynical among us there can be a sensitive, caring and tender soul. I want to thank Andrea D.A., possibly the funniest person I have ever met, for you have never once failed to cheer me up with your spontaneous, witty sense of
humour. I want to thank Diego. Friendship needs no explanation, just a little bit of fertilizer and the right amount of sunlight. May we continue to live our days and nights together, in full bloom!
I want to thank Dimitri. Only your celebrated poetic skills and boundless generosity match your intelligence. Oh brother, may we always be on the opposite side of the pitch and always on the same bright side of life! I want to thank my colega Maria, for you have shown me that darkness is nothing but a room without light, wine and laughter. I want to thank Andrea G. It will give me incredible joy to remain your sparring partner for the rest of our lives. I want to thank Jonathan. With you on my side, there is no road I cannot travel on and no obstacle I cannot overcome! I want to thank Jan. I have met you several years ago and you were a young solo artist, an unaccomplished researcher and unfulfilled footballer. By the end of this journey, no project of the Robert Schuman Centre can do without you. You are the sought-after co-president of the Squadra Fantastica. You have started a popular duet with your wife, Ilze. And yet, success did not go to your head and you remain the same good-natured and original person I have been lucky enough to cross paths with in 2012. Migliore amico!
May those who will embark on the same journey in the future be as lucky as I have been in these years! May they never take life too seriously: I made it through this journey largely thanks to the help of the Flanellas, Marco, Marcello, Giulio, Federico, Francesco, Enrico and Simone. I owe the biggest thank you to you! You have never missed an opportunity to distract me from my tedious routine, to mock the serious side of life, and to take care of me. Finally, I want to thank my family, meine Heimat, to whom this work is dedicated. All adventures are worth living, but no adventure is painless. In your presence, bodily and spiritual, I forgot about the pain and I have reached the destination of this journey.
Table of Contents
Introduction
1.1 Private International Law as Technique: The Dogmas of Neutrality and Isolation 1.2 The Family Anomaly: The Renaissance of the Dogmas of Neutrality and Isolation 1.3 Private International Law as Instrumentum Regni: The Transformative Thesis 1.4 Plan of the Thesis: The Transformation in Four Intellectual and Institutional Ages 1.5 Conflict of Laws as Instrumentum Regni in European Legal history
Methodology
1.1 Comparative Methods and Private International Law 1.2 Modes of Legal Thought and Private International Law 1.3 The Genealogical Method and Legal History
1.4 Quo Vadis, Conflict of Laws? Legal Evolutions and Unpredictable Transformations
Part I: The Age of Medieval Legal Thought
Chapter 1: From the Roman Jus Gentium to the Medieval Lex Cunctos Populos
1.1 The Conception and Regulation of Marriage and Household Relations in Roman Law 1.2 Consensus Facit Nuptias: Consent in Roman Law
1.3 Roman Pragmatism and the Informal and Consensual Conception of Nuptias 1.4 The Origins of the Roman Jus Gentium
2.1 The Fragmentation of the Empire: From the Personality to the Territoriality Principle 2.2 The Jus Commune and the Rise of Territorial Laws
2.3 Bartolus and the Rise of Territorial States
3.1 From the Roman Jus Gentium to the Medieval Lex Cunctos Populos
3.2 Medieval Eclecticism: The Vague Division between Personal and Real Statutes 3.3 From the ‘Roman Household’ to Canon Law: Marriage as an Informal Covenant 3.4 Consent: Civil lawyers and the Regulation of Marriage Within and Across Borders 4. The Governance Function of the Lex Cunctos Populos
Chapter 2: The Decline of the Jus Commune and the Rise of the Law of Nations
1.1 Further Disorder: Absolute Monarchies and the Protestant Reformation
1.2 The Council of Trent and the Regulation of Marriage before and after the Reformation 2.1 Hugo Grotius, the Natural Right to Marriage and the Formation of the Civitas
2.2 The Dutch Golden Age: Territorialism, Comitas and Ulrich Huber 2.3 International Marriage Contracts: Consensus and Intent
3.1 English Law, Special Courts and the Communis Opinion Doctorum 3.2 Conflictus Legum in England before the Acts of the Union
3.3 The Acts of the Union and Two Separate Jurisdictions, English and Scottish 3.4 Scrimshire v. Scrimshire: The Law of Nations and Marriage Contracts
4.1 William Blackstone and the Law of Nations between the Medieval and the Classical Age 4.2 The Structure of Blackstone’s Commentaries and the Regulation of Marriage Relations 4.3 The Redefinition of Marriage: From Consensual Agreement to Civil Contract
4.4 From Consensus Facit Nuptias to Marriage Act Facit Nuptias 5. Dalrymple v. Dalrymple and the Rise of National Law
Part II: The Age of Classical Legal Thought
Chapter 3: The Fall of Medieval Legal Thought and the Rejection of Statutism
1.1 The Changing Conception of Marriage and the Regulation of Household Matters
1.2 Reforms in Household Matters and Juridification of Social Life under the French Civil Code 1.3 The Individualist Turn and Puissance Publique: The Birth of the National Family
1.4 The French Civil Code and the Redefinition of Personal Status in Cross-Border Matters 2.1 Reception of the Napoleonic Code in Italy and the Dawn of the Classical Age
2.2 Giacomo Giovannetti: Conflict of Laws in Italy between Statutism and Patriotism
Part II: The Age of Classical Legal Thought
Chapter 4: Savigny and the Rise of Classical Conflict of Laws
1.1 Friedrich Carl von Savigny: Law and the Consciousness of the People
1.2 The common aspiration of European jurists: the völkerrechtliche Gemeinschaft 1.3 The Copernican Revolution of the Seat-selecting Principle
2.1 The Systematic Organisation of the National Legal Order
2.2 The Construction of Family Law and the Redefinition of Marriage as Status 3.1 The Classical Organisation of Conflict of Laws: Contract vs. Marriage
3.2 Richard Story and the Conceptualisation and Regulation of Marriage Across Borders 3.3 The Rejection of Intent: Marrying Families and Nations
4. Classical Private International Law, Free Trade and Nation States
Chapter 5: The Transformation of English Conflict of Laws in the Classical Age
1.1 Story, Bentham and the Isolation of English Private International Law 1.2 The Chaotic State of English Conflict of Laws in the Victorian Era
2.1 The New Legal Science and the Influence of Savigny on English Conflict of Laws 2.2 The Logical Principle of Dichotomy and the Re-Organisation of Conflict of Laws 2.3 The Proper Law of Contract: Free Will and Market Relations
3.1 Changing Judicial Perceptions and the Regulation of Cross-Border Family Relations 3.2 The Movement from Status to Contract, and the Exception of Family Matters
3.3 The Lex Status of International Marriage and Divorce
3.4 Conflict of Laws and the Civil and Political Boundaries of National Societies 4. Private International Law and the Cultural Boundary of European Society
Chapter 6: Classical Legal Thought and Italian Private International Law
1.1 Constitution by Codification: Constructing Italian Society with Family Law 1.2 Pasquale Stanislao Mancini: The Principle of Nationality and the Jus Gentium 2.1 The Advantages and Perils of Supranational Codification
2.2 Italian Private International Law and its Place in Classical Legal Thought 3.1 The Voluntary Part of Private (International) Law: The Law of the Market 3.2 The Mandatory Part of Private (International) Law: The Law of the Family 4. The Boundaries of Italian Society and the Decline of the Classical Approach
Part III: The Age of Social Legal Thought
Chapter 7: The Rise of the Social and the Transformation of Italian Private International Law
1.1 Dionisio Anzilotti between Classical Legal Thought and Social Legal thought
1.2 The Crisis of Classical Private International Law and the Rise of a New Legal Science 1.3 The Coordination of Legal Orders in Santi Romano’s Ordinamento Giuridico
1.4 The Crisis of the Modern State, Private International Law and Non-State Institutions 2.1 The Transformation and Fragmentation of Contract Law in the Social Age
2.2 The Law of the Household in the Beginning of the Social Age 2.3 Antonio Cicu, the Social Function and Public Nature of Family Law 2.4 Family Law and the Protection of Social Interest
2.5 The Reconceptualization of Status in the Social Age
2.6 The Reform of Family Law in the Early Years of the Fascist Regime 2.7 The International Dimension of the Family in the 1920s and 1930s 3.1 The Transformation of Private International Law in the Social: Marinoni
3.2 The Recognition of Foreign Decisions and the Social Purposes of Conflict of Laws 3.3 Roberto Ago and the ‘Common Scientific Investigation’ of Private International Law 3.4 The Multilateral Method in the Social Age: Connecting Factors and Public Order 3.5 Giorgio Balladore Pallieri and the Preliminary Provisions of the Civil Code of 1942
3.7 Italian Family Law and Italian Contract Law Before the Age of Conflicting Considerations 3.8 The Social Multilateral Method at the Outset of the Age of Conflicting Considerations
1.1 Albert Dicey and his Digest: between Classical and Social Legal Thought 1.2 Conflict of Laws as the Extra-Territorial Recognition of Foreign Rights
1.3 The Theoretical and the Positivist Method: The Classical and Social Approaches 1.4 Vested Rights as an Example of the Neutrality of Conflict of Laws in the Social Age 1.5 Capacity and Status: Mercantile Contracts vs. Marriage Contracts
1.6 The Objectification of the ‘Proper Law’ of Mercantile Contracts
1.7 Reforms to the English Law of Marriage and The Law of Coverture in the Social Age 1.8 Divorce in the Social Age: Jurisdiction and Applicable Law
2.1 Cheshire and the Redefinition of English Private International Law in the Social Age 2.2 The Extension and Qualification of the Proper Law Test in Mercantile Matters 2.3 Capacity, Formal and Substantial Validity in Marriage Matters in the Social 2.4 Jurisdiction in Divorce and Nullity Proceedings
3.1 Ronald Graveson and the Social Purposes of Private International Law 3.2 The Law of Status as an Instrument for the Protection of Social Interest 3.3 Social Functionalism in the Division between Formal and Substantial Matters 3.4 The Transformation of the International Law of Contract in the Social Age 3.5 From Status to Contract, from Contract to Status?
4. The Renovated International Spirit and the new Transformation of Conflict of Laws
Part IV: The Age of Conflicting Considerations
Chapter 9: The Conflict Transformation in the Age of Conflicting Considerations
1.1 The Crisis of Private International Law in the Contemporary Age
1.2 Conflict of Laws as a Mediating Mechanism between Conflicting Visions and Interests 1.3 The Harmonisation of Private International Law
2.1 Family Law Exceptionalism and the Transformation of Family Law 2.2 The Italian and English Law of Marriage and Divorce
2.3 The English and Italian Law of Husband and Wife in the Age of Conflicting Consideration 2.4 Still the Same Old Family Law? Informal Arrangements, Family Law and Social Cohesion 3.1 The Search for the Most Appropriate Link in Cross-Border Family Matters
3.2 The Extension of Proper Law to Family Matters: A Market for Divorces?
3.3 Statutory Reforms, International Conventions and the Return of the Law of the Domicile 3.4 Italian Private International Law between Unilateralism and Multilateralism
4. European Private International Law before its Communitarisation and Instrumentalisation
Chapter 10: EUropean Private International Law and European Post-National Societies
1.2 The Multiplication of Statuses of European Market-Participants
1.3 Uniformity vs. Private International Law in Cross-Border Family Matters 2.1 The Method of Recognition and the Protection of Continuity of Status 2.2 An Odd Union: Party Autonomy and the Continuity of Status across Borders 3.1 The Family Anomaly in EUropean Private International Law
3.2 The Evolution of Family Law from Status to Contract: Recent Changes in Family Laws 4.1 Favor Status in EUropean Private International Law of the Family
4.2 The Family Anomaly in European Law: Coman and Hamilton 4.3 The New Permanent Status of European Citizens
5. The Incomplete Project of EUropean Private International Law
Conclusion: Revolution? Evolution? Cycles? Transformation!
1. The Transformation of European Private International Law across Legal-Institutional Ages 2. The Contemporary Redefinition of Private International Law and the Family Anomaly 3. EUropean Private International Law of the Family and the Emergence of the Market-State 4. Private International Law, Multiple Affiliations and New European Identities
Table of Cases
England and Wales (Alphabetical Order)
Apt v. Apt [1948] P 127, [1947] 1 All ER 620, [1947] WN 123 Barber v. Pigden [1937] 1KB 664
Baxter v. Baxter [1948] AC 274 Berthiaume v. Dastons [1930] AC 79 Boissevain v. Weil [1949] 1 KB 482
British South Africa Co. v. De Beers Consolidated Mines Co. Ltd. [1910] 1 Ch. 354, 381 Brodie v. Brodie (1861) 2 Sw. & Tr. 259
Brook v. Brook (1858) 65 ER 746
Callwell v. Callwell (1860) 3 Se. & Tr. 259
Chartered Bank of India v. Netherlands India Stream Navigation Co. (1883), 10 Q.B.D. 521 Cheni v. Cheni [1965] P 85
Chetti v. Chetti [1909] P 67
Coast Lines Ltd. v. Hudig and Veder Chartering N.V. [1972] 2 QB 34 Cocgrane v. Campbell (1753) 1 Paton’s Cases 519
Compagnie d’Armement Maritime S.A. v. Compagnie Tunisienne de Navigation S.A. [1971] A.C. 572
Compton v. Bearcroft (1769), 2 Hag. Cons. 444 N. Corbett v. Corbett [1971] P 83
Dalrymple v. Dalrymple (1811) 2 Hag Con 54: Deck v. Deck (1860) 2 Sw. & Tr. 90
De Montaigu v. De Montaigu [1913] P 154 Dickinson v. Dickinson [1913] P 198
Gottliffe v. Edelston [1930] 2 KB 378 Gray v. Formosa [1963] P. 259 CA
Greenstreet v. Cumyns (1812) 2 Phill. Ecc. 10 Grierson v. Grierson (1781) 2 Hagg. Cons. 86 Harford v. Morris (1776) 2 Hag. Cons. 423 Harvey v. Farnie (1880) 6 PD 35
Holman vs. Johnson (1775) 1 Cowp 341 Hamlyn v. Talisker (1894) AC 202 Hope v. Hope (1858) 164 ER 644 Hyde v. Hyde (1866) LR., P&D 130, Inverclude v. Inverclyde [1931] P 29 Indyka v. Indyka [1969] 1 AC 33
Jacobs v. Credit Lyonnais (1884) 12 QBD 589 Jack v. Jack (1863) 24 D 467
Jarndyce v. Jarndyce [1982] Ch 529 Jones v Robinson (1815) 2 Phill. 285 Lawrence v. Lawrence [1985] Fam. 106 Le Mesurier v. Le Mesurier [1895] AC 517 Lindo v. Belisario (1795) 1 Hag. Con. 216 Lloyd v. Guiber (1865), LR 1 QB 115
McCarthy v. Penrikyber Navigation Colliery Co. [1938] 107 LJKB Mette v. Mette (1859) 1 Sw. & Tr. 416
Middleton v. Janverin (1802), 2 Hagg. Cons. 437
Midland Bank Trust Co Ltd v. Green (no. 3) [1982] CH 529 Mogadara v. Holt (1691) 89 Eng. Rep. 597, 598; KB 317 Mordaunt v. Mordaunt (1870) LR 2P&D 103
Mostyn v. Fabrigas (1773) 98 Eng. Rep. 1021, 1022; KB 177
Mount Albert Borough Council v. Australasian Temperance, etc. Society [1938] AC 224 Napier v. Napier [1915] P 184
Niboyet v. Niboyet (1878) LR 4 PD 1 Ogden v. Ogden [1908] P 46
Pritchard v. Pritchard and Sims [1967] P 195 Qureshi v. Qureshi [1972] Fam. 173
R. v. Brentwood Superintendent Registrar of Marriages, ex p. Arias [1968] 2 QB 956 R. v. Chadwick (1848) 11 QB 173
R. Inhabitants of Tibshelf (1830) 1 B&Ad 190
R. v. Immigration Appeal Tribunal, ex p. Rafika Bibi [1989] Imm. AR 1 R. v. International Trustee for the Protection of Bondholders [1937] AC 500 Radmacher v. Granatino [2010] UKSC 42
Radwan V. Radwan (No. 2) [1972] Fam. 35 Regina v. Jackson [1891] All ER Rep 61, 1 QB 67 Re Paine, Griffith v. Waterhouse [1940] 1 Ch. 46 Robinson v. Bland (1760) 2 Burr 1077
Russel v. Russel [1897] AC 395 Rutherford v Richardson [1923] AC 1
Salvesen v. Administrator of Austrian Property (1927) AC 641 Santos v. Illidge (1860) 8 CBN s. 861; 29 LJCP 348
Scrimshire v. Scrimshire (1752) 2 Hag. Con. 395, 161 ER 782 Simonin v Mallac (1860) 2 Sw. & Tr. 67
Somerset v. Stewart (1772) 98 ER 499
Sottomayor v. De Barros (no. 2) (1879), LR 5 PD 4 Stathatos v. Stathatos [1913]
Thomson v. Dibdin, L.R. [1912] AC 533 Travers v. Holley [1953] 3 WLR 507
Triquet v. Bath (1764) 3 Burrow’s Reports 1478 Tzortzis v. Monark Line [1968] 1 WLR 406 Udny v. Udny (1869) LR 1 HL; Sc. & D. 441 Van Grutten v. Digby (1862) 31 Beay. 561 Vervaeke v. Smith [1983] 1 AC 145
Warrender v. Warrender (1835) 2 CI. & F 531; 9 Bl.NR 112 Whicker v. Hume (1858) 7 HLC 124, 160
Wilson v. Wilson (1872) LR 2 P&M White v. White [1937] P 1
Whitworth Street Estates (Manchester) Ltd. v. James Miller & Partners Ltd. [1969] 1 WLR 377 Zanelli v. Zanelli (1948) 64 TLR 556
Italy (Chronological Order)
Sanama c. Sanama, Corte di Appello di Lucca, 8 giugno 1880
Giusiana in causa Levron contro De-Corderiis, Decisione del 9 settembre 1734 De-Oresticis in causa Blacas contro Durazzo, e Lascaris, Decisione 13 settembre 1764 Cort. Cost. Sentenza n. 46 del 1966
Cort. Cost. Sentenza n. 102 del 1967 Cort. Cost. Sentenza n. 127 del 1968 Corte Cost. Sentenza n. 27 del 1969 Cort. Cost. Sentenza n. 128 del 1970 Cort. Cost. Sentenza n. 133 del 1970
Cort. Cost. Sentenza n. 99 del 1974 Cort. Cost. Sentenza n. 6 del 1977 Cort. Cost. Sentenza n. 45 del 1980 Cort. Cost. Sentenza n. 14 del 2003
Suprema Corte di Cassazione, Prima Sezione Civile, Sentenza n. 23713 del 2012
European Court of Human Rights (Chronological Order)
Wagner and J.M.W.L. v. Luxembourg, Application No. 76240/01, 28 June 2007 Schalk and Kopf v. Austria, Application No. 30141/04, 24 June 2010
Gas and Dubois v. France, Application No. 25951/07, 15 March 2012 Chapin and Charpentier v. France, application No. 40183/07, 9 June 2016
European Court of Justice (Chronological Order)
C-26/62 Van Gend en Loos [1963] ECR 13 C-6/64 Costa v. ENEL [1964] ECR 585 C-120/78 Cassis de Dijon [1979] ECR 649
C-430/97 Johannes v. Johannes [1999] ECR 1-3475
Case C-148/02 Garcia Avello v. État Belge [2003] ECR I-11613
Case C-353/06 Stefan Grunkin and Dorothee Regina Paul [2008] ECR I-07639 Case C–208/09 Sayn-Wittgenstein [2010] ECR I–13693
Case C-147/08 Jürgen Raömer v. Freie und Hansestadt Hamburg [2011] ECR I-3591 Case C-391/09 Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v. Vilniaus miesto savivaldybės administracija and Others [2011] ECR I-03787
Table of Legislation
England (Chronological Order)
Marriage Act 1753
Act for the Abolition of the Slave Trade 1807 Ecclesiastical Courts Act 1813
Slave Trade Act 1824 Marriage Act 1836
Births, Deaths and Marriages Registration Act 1836 Slave Trade Act 1843
Marriage and Registration Acts Amendment Act 1856 Matrimonial Causes Act 1857
Matrimonial Causes Act 1860 Offences against the Person Act 1861 Matrimonial Causes Act 1866
Supreme Court of Judicature Act 1873 Married Women’s Property Act 1882 Matrimonial Causes Act 1884
Workmen’s Compensation Act 1897 Marriage Act 1898
Deceased Wife’s Sister’s Marriage Act 1907 Coal Mines (Minimum Wage) Act 1912 Marriage in Japan (Validity) Act 1912
Deceased Brother’s Widow’s Marriage Act 1921 Matrimonial Causes Act 1923
Marriage (Prohibited Degrees of Relationship) Act 1931 Law Reform (Married Women and Tortfeasors) Act 1935 Factories Act 1937
Matrimonial Causes Act 1937
Young Persons (Employment) Act 1938 Marriage Act 1949
Marriage (Enabling) Act 1960 Wills Act 1963
Adoption Act 1968
Family Law Reform Act 1969
Law Reform (Miscellaneous Provisions) Act 1970 Recognition of Divorces and Legal Separations Act 1971 Matrimonial Proceedings (Polygamous Marriages) Act 1972 Domicile and Matrimonial Proceedings Act 1973
Supply of Goods (Implied Terms) Act 1973 Matrimonial and Family Proceedings Act 1984 Family Law Act 1986
Marriage (Same Sex Couples) Act 2013
Italy (Chronological Order)
Breve del Consiglio di Genova del 1143 Statuto di Modena del 1327
Costituzioni di Modena del 1771
Legge che stabilisce la ‘Forma di Governo Repubblicano Provvisorio per il Piemonte’ del 1796 Costituzione Ligure del 1797
Legge n. 1776 of 1919
Regio Decreto n. 880 del 19 aprile 1937 Legge n. 1728 of 1938
Regio Decreto n. 262 del 16 marzo 1942
Legge n. 7 del 9 gennaio 1963 (Divieto di licenziamento delle lavoratrici per causa di matrimonio) Legge n. 898 del 1 dicembre 1970 (Disciplina dei casi di scioglimento del matrimonio)
Legge n. 151 del 19 maggio 1975 (Riforma del diritto di famiglia)
Legge n. 218 del 31 maggio 1995 (Riforma del sistema italiano di diritto internazionale privato) Legge n. 76 del 20 maggio 2016 (Regolamentazione delle unioni civili tra persone dello stesso sesso e disciplina delle convivenze)
International Conventions
Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (consolidated version), [1998] OJ C 27, 26.1.1998
Rome Convention on the law applicable to contractual obligations (consolidated version), OJ C 27, 26.01.1998
European Directives (Chronological Order)
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L 95 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [1995] OJ L 158
Directive 95/46/EC of the European Parliament and of the Council 24 October 1995 on the
protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L 281
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States OJ L 158
European Regulations (Chronological Order)
Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters OJ L 160
Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, OJ L 174/1
Council 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, 1-23
Council Regulation (EC) No 743/2002 of 25 April 2002 establishing a general Community
framework of activities to facilitate the implementation of judicial cooperation in civil matters, OJ L 115/01
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 OJ L 338/01
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 OJ L 199/40
Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation OJ L 324/79 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations OJ L 177/6
Council Regulation (EC) No 4/2009/EC, concerning jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations OJ L 7 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 OJ L 343
Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European certificate of Succession OJ L 201
Wisława Szymborska, Psalm, 1976
Oh, the leaky boundaries of man-made states! How many clouds float past them with impunity; how much desert sand shifts from one and to another;
how many mountain pebbles tumble onto foreign soil in provocative hops!
Need I mention every bird that flies in the face of frontiers or alights on the roadblock at the border?
A humble robin—still, its tail resides abroad
while its beak stays home. If that weren’t enough, it won’t stop bobbing! Among innumerable insects, I’ll single out only the ant
between the border guard’s left and right boots
blithely ignoring the questions “Where from?” and “Where to?”
Oh, to register in detail, at a glance, the chaos prevailing on every continent!
Isn’t that a privet on the far bank smuggling its hundred-thousandth leaf across the river? And who but the octopus, with impudent long arms,
would disrupt the sacred bounds of territorial waters?
And how can we talk of order overall?
when the very placement of the stars leaves us doubting just what shines for whom?
Not to speak of the fog’s reprehensible drifting! And dust blowing all over the steppes
as if they hadn’t been partitioned!
And the voices coasting on obliging airwaves,
that conspiratorial squeaking, those indecipherable mutters! Only what is human can truly be foreign.
The rest is mixed vegetation, subversive moles, and wind.1
Introduction
In a global age characterised by growing exchanges and heightened mobility on the one hand, and by the existence of jurisdictional frontiers and by the resilience of local laws on the other, the risk of legal collisions increases and so does the relevance of private international law. In general, private international law, also known as the conflict of laws, indicates those rules and principles whose purpose is to submit relations and disputes that have a cross-border dimension to a given jurisdiction or to a specific local law.2 Various other titles have been advanced in the history of the discipline. In
this study, I use the two terms, ‘conflict of laws’ and ‘private international law’ broadly and interchangeably. I believe that most scholars are so familiar with these two terms that no harm can follow from using either to refer to the subject as a whole.
Although the conflict of laws has varied across time and space, disciplinarily and functionally, in Europe it is most commonly associated with rules governing jurisdictional competence, choice of law and recognition of foreign judgments in international private relations.3 Because the frequency of
such relations continues to increase, there has been a renewal of interest in private international law. Also in consideration of the efforts by the European Union (EU) to remove obstacles to cross-border transactions, experts have looked at and have compared developments taking place at municipal and
2 For a discussion and critique of the titles Symeonides, S. ‘American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons’, 82(5) Tulane Law Review, 2008
3 Conflict of laws is generally divided into three topics. If a case containing a ‘foreign element’ comes before a national court, the court is first to determine if it has jurisdiction or not to adjudicate. According to the classical tripartite division of multilateral private international law, the first branch would consist of rules which determine whether the local forum has jurisdiction to try the dispute in question. Questions of forum, it ought to be noted, are sometimes placed outside the discipline of conflict of laws sensu strictu. Once a national court has found it has jurisdiction to adjudicate, a second question arises, concerning the body of rules that the deciding court ought to apply. The second branch of private international law, which is regarded as the characteristic element of the subject, includes the rules that determine the applicable law, the so-called ‘choice of law’ rules. The second branch therefore concerns questions of lex. Various titles are used to indicate the law that applies to a given cross-border scenario. The law which is applied taken ex nunc the name of lex causae. The law applied does not necessarily correspond to the law of the deciding court, which is referred to as the lex fori, but can correspond to the law of the place of contracting, the law of the place of performance, the law of nationality etc. Normally, the specialised literature refers to these laws with Latin titles: lex loci contractus, lex loci
solutionis, lex patriae etc. Private international law is also said to include a third branch which is concerned with the
recognition, or rejection, and implementation of foreign judgements or measures. Proceedings taking place in a jurisdiction for recognising a foreign judgement go by the name of exequatur. Experts sometimes include within the subject of conflict of laws a wider range of matters and topics that may affect the operation of conflict rules. One example is the rules defining the acquisition and loss of nationality. An ‘expansive’ conception of the subject is more prevalent in certain national traditions (see, for instance, Bureau, Dominique and Muir Watt, Horatia, Droit international privé, Partie
générale. Thémis, Presses Universitaires de France, 2007). In this study, the subject is understood expansively, although
the goal of this study is neither to contribute to redefinition of the discipline nor to provide a comprehensive and coherent list of rules and principles which make up the discipline.
supranational levels.4 They have used unorthodox methods to examine the discipline from new
angles.5 Conflict principles and doctrines are used to advance broader jurisprudential claims regarding
the role of law in plural societies.6 In turn, traditional rules and assumptions have become the subject
of comparison, debate and revision.
Most experts agree that private international law makes up a valuable resource for administering concurrent claims over jurisdiction, for settling questions regarding applicable law and for deciding whether to recognise and enforce foreign decisions. Some specialists have nevertheless pointed out that the classical parameters and goals of the conflict of laws, fixed as they were in a different juridical era and political climate, may be inadequate to deal with the complex challenges that contemporary societies face. In a recent article where she has urged legal scholars to take the technical dimensions of law seriously, Annalise Riles remarked that private international law exemplifies ‘legal technicalities’, as it comes across as an “essentially meaningless” subject which is constituted by “a morass of highly technical … doctrines developed by largely unknown academics in relative isolation from the political process”.7
This description fits the image projected by specialists. Private international law was and is portrayed by experts and non-experts alike as an overly complex subject and, at the same time, as a neutral and isolated technical tool.8 In recent years, however, critics have questioned some of the assumptions
which characterise the nature and constrain the functions of private international law which stem from
4 See the Symposium ‘The New European Choice-of-Law Revolution: Lessons for the United States?’, 82(5) Tulane Law
Review (2008)
5 Knop, K., Michaels R. and Riles, A. ‘Foreword’, 71(3) Law and Contemporary Problems (2008)
6 Knop K., Michaels R. and Riles A., ‘From Multiculturalism to Technique: Feminism, Culture, and the Conflict of Laws Style’, 64 Stanford Law Review (2012). See also Knop, K. ‘Citizenship, Public and Private’, 71(3) Law and Contemporary
Problems (2008)
7 Riles, A. ‘Taking on the Technicalities. A New Agenda for the Cultural Study of Law, 53 Buffalo Law Review (2005), p. 978. Here, Riles divides between two groups of legal scholars, the ‘Culturalists’ and the ‘Instrumentalists’. Both groups, she argues, have impoverished what defines the specific character of the legal field, the technicalities of legal thought (p. 974). She argues that “To the culturalist, the technical dimensions of law are a mundane and inherently uninteresting dimension of the law, the realm of practice rather than theory.” (ibid.) “To the instrumentalist, in contrast, the technical details are interestingly only insofar as they are relevant to what lawyers sometimes term ‘building a better mousetrap’” that is, nothing more than an instruction manual for properly operating a machine. (p. 975). Riles therefore argues that the technical dimensions of the law should not be neglected because this would lead to neglecting the core of legal thought, because technicalities often encapsulate politics and, last but not least, because the critical scholarship possess the methodological resources to understand and expose this aspect of law.
8 Almost two centuries ago, the subject was appropriately described as “the most intricate and perplexed of any that has occupied the attention of lawyers and courts: one on which scarcely any two writers are found to entirely agree, and one which, it is rare to find one consistent with himself throughout.” In the case heard by the Louisiana Supreme Court Saul
v. His Creditors, 5 Mart, (n.s.) 569, 589 (1827) per Judge Porter. It is notorious for being a legal subject where “learned
but eccentric professors … theorize about mysterious matters in a strange and incomprehensible jargon.” This is the very vivid picture drawn by American Professor William Lloyd Prosser, to which he added that “The ordinary court, or lawyer, is quite lost when entangled in it.” Prosser, W. ‘Intestate Publication’, 51 Michigan Law Review (1953), p. 971
the foundational dogmas regarding the discipline.9 Among them are the myths of ‘neutrality’ (or
‘non-instrumentality’) and ‘isolation’ (also referred to here as ‘autonomy’). Although part of the scholarship has rejected them, these two myths are re-surfacing in cross-border family matters.
1.1 Private International Law as Technique: The Dogmas of Neutrality and Isolation
According to the myth of isolation, conflict of laws is a branch of national law and a self-referential discipline made of methods and technical rules which are developed at municipal level in isolation from broader legal and political processes.10 According to the dogma of neutrality or
non-instrumentality, the aim of conflict rules is to facilitate cross-border exchanges, to fulfil the expectations of the parties, to promote conflict-justice or to protect rights acquired abroad. In the contemporary age the dogmas of neutrality and isolation live, although cast in a different vocabulary. The name and content of the objective changes, but the ‘coordinating functions’ of conflict of laws remain. Private international law is thus still often described as a branch of national law made of technical rules designed to deal with private cases “having a foreign element”.11 Conflict of laws is
described as only indirectly and haphazardly influenced by political and legal developments taking place at supranational level.
The resilience of the classical dogma of isolation means that private international law is typically understood, and examined, as a discipline and set of rules which are impermeable to legal and institutional developments taking place outside its alleged natural and permanent borders, in the contemporary age as well as in the past. Developments in the discipline are considered separately from changes in public international law, but also from those occurring in family law, or in the law
9 See the collection in Muir Watt, Horatia (ed.), Private International Law and Public law. Edward Elgar Pub, 2015 10 The origins of the dogma of autonomy can be traced back to the age of ‘classical legal thought’, the dominant mentality from the second half of the 18th century to the end of the 19th century. In this period, Joseph Story (1779-1845) coined the term ‘private international law’. In one of the most influential works on the subject, he observed that this “branch of public law may … be fitly denominated private international law, since it is chiefly seen and felt in its application to the common business of private persons, and rarely rises to the dignity of national negotiations, or of national controversies.” In J. Story, Commentaries on the Conflict of Laws, Foreign and Domestic, in regard to Contracts, Rights, and Remedies,
and Especially in regard to Marriages, Divorces, Wills, Successions, and Judgments, Reprint of the Second Edition of
1841, The Lawbook Exchange, New Jersey (2003), pp. 11-12. On classical legal thought, see Kennedy, Duncan. The Rise
and Fall of Classical Legal Thought. Beard Books, 2006. Kennedy, D., ‘Towards an Historical Understanding of Legal
Consciousness: The Case of Classical Legal Thought’, in Spitzer, Steven (ed.), Research in Law and Sociology, Vol. 3 (1980)
11 Thus, for the leading English textbook: “The branch of English law known as the conflict of laws is that part of the law of England which deals with cases having a foreign element. By a ‘foreign element’ is meant simply a contact with some system of law other than English law. Such a contact may exist, for example, because a contract was made or to be performed in a foreign country, or because a tort was committed there, or because property was situated there, or because the parties are not English.” Collins, Lawrence et al., Dicey, Morris and Collins on the Conflict of Laws, Vol. 1, Thomson, Sweet and Maxwell, 2006 (14th edition), p. 3
of the economy, as each of these disciplines would be endowed with a separate set of methodological tools, underlying principles and systemic objectives.12 Isolation translates in well-established external
limits as well as internal structure. The discipline is still generally organised along the conceptual schemes and legal divisions in which 19th century jurists placed those rules (marriage, contract,
property etc).
In historical terms, this means that most accounts report the chronological development of conflict doctrines and techniques falling within its boundaries, without attention to institutional and cultural changes occurring in ‘the background’.13 As Alex Mills has pointed out, histories of private
international law are “told simply as a historical fact, without significant attention to contextual factors - suggesting the discipline is propelled forwards by internal dynamics.”14 Typical histories
thus read like a dry succession of competing paradigms, techniques and methods and, notoriously, as a conflict between the ‘unilateral’ and ‘multilateral methods’.15 In other words, the “isolation of
private international law” is considered the natural end of an historical process, as well as the starting point for future developments in the discipline.16
The myth of neutrality is also still entrenched in legal consciousness. Despite the almost pathological diversity of opinions regarding virtually every dimension of the subject - which is exemplified by the eternal struggle between unilateralism and multilateralism - experts typically consider private international law an unbiased procedural mechanism and a value-neutral tool.17 Aims have changed
12 See Mills, A. ‘The Private History of International Law’, 55(1) The International and Comparative Law Quarterly (2006) and Mills, Alex. The confluence of public and private international law: justice, pluralism and subsidiarity in the
international constitutional ordering of private law. Cambridge University Press, 2009. Mills has addressed this issue
with respect to the division between public and private international law. His work addresses two ‘myths’ or ‘assumptions’: “The first is an assumption of public international law. It is the myth that the history of international law is one of progressive expansion, of increasing concern in public international law with matters traditionally considered private or internal to States, and that this expansion is a relatively recent phenomenon.’ The second is an assumption of private international law. It is the myth that private international law is not actually international, as it is essentially and necessarily a part of the domest law of States.” Mills, ‘The Private History’, p. 1. It is here argued that the myth of isolation originates in convictions that are rooted deeper than the public/private, national/international divides.
13 For instance, see Ancel, Betrand. Éléments d’histoire du droit international privé. Université Panthéon Assas. 2017 14 Mills, ‘The Confluence’, p. 26
15 “A typical history of a subject like public or private international law is ‘internal’ or ‘intrinsic’, a history of the development of legal doctrine and theory within the discipline. In such a history, theories or approaches are presented chronologically, in a series of ‘epochs’ or competing ‘paradigms’.” Mills, ‘The Private History’, p. 1
16 Paul, J. R., ‘The Isolation of Private International Law’, 7 Wisconsin International Law Journal (1988)
17 Although it is generally agreed that private international law is a self-referential discipline made of neutral principles and rules, the paradox is that the specialised scholarship has not generated clear rules and definitive methods to solve legal collisions. The discontent but also fascination with conflict of laws comes from the fact that experts never managed to reach an agreement about principles and methods that could last for longer than a generation of legal scholars. Legal history shows that once an agreement was reached subsequent experts challenged the premises and underlying principles of the method developed by their predecessors. This has given way to a long and unsettled debate regarding the nature of change, revolutionary or evolutionary, of the discipline. Vischer, Frank. ‘General course on private international law’.
across space and time. In the past, specialists referred to ‘uniformity of decisions’ and ‘legal certainty’. Today, they refer to ‘substantive neutrality’ and ‘decisional harmony’.18 Regardless of
textual variation and methodological preferences, neutrality is still at the heart of the discipline. Within the context of debates on multiculturalism, the conflict of laws is thus said to constitute a culture-blind and impartial apparatus that enables courts to protect equality and justice.19
Due to recent changes in law and in discourse, the foundations of classical dogmas are being gradually eroded. To think of this discipline as a method and as a meaningless technique isolated from broader political and legal process, it has been argued, ignores how the development of conflict rules and principles relate to the ‘big picture’ and the deeper effects that changes in private international law have produced, and could generate, socially and institutionally.20 Accordingly, recent studies have
blamed purely methodological reconstructions for being unable to shed full light on the drivers and consequences of recent developments.21 They have emphasised the influence of ideas originating
outside the boundaries of private international law for the development of conflict principles.22 They
have also stressed the existence of common historical developments and shared argumentative structures between conflict of laws and public international law.23
each jurisdiction, or about the most appropriate method that local courts should employ to solve cross-border disputes have led some of the most authoritative voices in the discipline to warn that private international law was being turned into a ‘mystagogy’. Jünger, F. K. ‘General Course on Private International Law’, Recueil des Cours (1983), p. 131 18 As Jacco Bomhoff and Anne Meuwese have underlined, “orthodox … aspirations of autonomy and non-instrumentality find their expression in adherence to the ideals of ‘substantive neutrality’ and ‘decisional harmony’.” Bomhoff, J. and Meuwese, A. ‘The meta-regulation of transnational private regulation’, 38(1) Journal of Law and Society (2011), p. 151 19 Knop, Michaels and Riles, ‘From Multiculturalism to Technique’, p. 641. In their view, the key strength of private international law would lie in its technical nature which provides courts with neutral procedures to reach their decisions in cross-border scenarios. However, it ought to be noticed that it is this very nature of conflicts law which have hidden parochial policies behind a veil of impartiality in the age of nation-states - labelling a set of rules as ‘procedural’ does not by itself eliminate the normative orientation intrinsic in any rules.
20 Hatzimihail, N. ‘On Mapping the Conceptual Battlefield of Private International Law’, 13 Hague Yearbook of
International Law (2000)
21 Ibid.
22 They have pointed out that private and public international law may be converging once again.For a German take on this question, see Michaels, R. ‘Public and Private International Law: German views on global issues.’, 4(1) Journal of
Private International Law (2008)
23 Paul argued that reunification of private and Public International Law could be realised if scholars focused on the common structure of arguments and on common principles, and specifically on those of comity, contract and public policy, more than on common rules. He lamented that the ossification of our understanding of contract, of comity, of public interest led to Private International Law from shying away from the challenges that were dawning in the age of globalisation. As he vividly argued: “Diplomats debate the rules of the arms race without mention of comity; we spend the wealth of an empire on constructing weapons of destruction that would leave no sovereign untouched; we poison the atmosphere, extinguish species and level rain forests all without regard for the fragile web of public and private interests of states and persons in the continuation of human existence; we elevate the rule of contract at the expense of the vast majority of the world’s people, who survive under a mounting burden of debpt, while their domestic security is threatened by hunger, authoritarianism and revolution; we celebrate the freedom to choose, while denying the freedom to eat.” Paul, ‘The Isolation’, p. 178. In the final part of the thesis, this study will consider the question of the changing nature, public and private, national or international, which results from the communitarisation of conflict of laws in the EU.
It is not only the dogma of isolation, but also the myth of neutrality which has become the object of an internal critique in recent years. Conflict of laws, experts have argued, could address many challenges that contemporary societies face, including the regulation of global financial markets, the protection of the environment and the lack of accountability of multinational corporations.24 Private
international law could help to increase protection and enforcement of fundamental human rights enshrined in international and regional conventions.25 Conflict rules could be reconfigured to bring
about a more effective and equitable global governance.26 Private international law could be
transformed from a passive onlooker or even participant in economic and social oppression into a regulatory resource for addressing justice concerns at global and local level.27 In order to set up an
effective strategy in an era of globalised private relations, the classical dogma of non-instrumentality must be abandoned and must give way to its unfulfilled regulatory potential.28
As far as the regulation of cross-border economic matters is concerned, experts have called into question the origins as well as the desirability of the classical dogmas. They lay emphasis on the harmful results that such myths have generated by separating, artificially and dogmatically, the national from the international sphere, public from private and law from politics.29 Against a
background characterised by the global diffusion of private power, specialists have denounced the classical dogma that has identified regulation with parochialism and has made it possible for non-state actors to escape from public regulation.30 In a globalised society characterised by greater
mobility of persons, capital, goods and services across jurisdictions, conflict principles such as party autonomy - in a nutshell, the capacity of the parties to select the applicable law - and the automatic recognition and enforcement of rights acquired abroad have ended up constituting a safe harbour for regulatory arbitrage and system-shopping.
24 See PILAGG (Private International Law as Global Governance), research project at Sciences Po.
25 See Fawcett, James J., Ní Shúilleabháin, Máire and Shah, Sangeeta. Human Rights and Private International Law, Oxford University Press, 2016; Kiestra, Louwrens R. The Impact of the European Convention on Human Rights on
Private International Law, Springer (2014)
26 See the comprehensive topics covered by the collection of essays in Muir Watt, Horatia and Fernández Arroyo, Diego P. (eds). Private International Law and Global Governance, Oxford University Press, 2014
27 R. Wai, ‘Transnational Liftoff and Juridicial Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’, 40 Columbia Journal of Transnational Law (2001-2002)
28 Ibid. Wai has examined the de-regulation of global economic activities that has taken place in conformity with the notion that private international law should facilitate business transactions. He has advanced the argument that regulation should not be confused for parochialism. He has proposed a cosmopolitan and regulatory version of private international law of the economy that could help to curb the worst excesses of economic globalisation and could play the role in the constitution of global governance.
29 Muir Watt, H. ‘Private International Law as Global Governance: Beyond the Schism, from Closet to Planet’, 2(3)
Transnational Legal Theory (2011)
Changes are not only noticeable in discourse, but also in positive law, including in EU law. The so-called processes of ‘communitarisation’ and ‘instrumentalisation’ of private international law under the aegis of EU law stand as proof of the gradual decline of the myths of neutrality and isolation.31
Since the 1970s, rules and principles which were unanimously regarded as part of internal orders of Member-States have been first ‘harmonised’ along with other private laws and then ‘communitarised’, i.e. legislated at community level, thus putting into question the dogma of autonomy.32 Consistent with a transition towards a regulatory paradigm in European private economic
law, this process does not limit itself to the objective of removing obstacles to market integration, but has also added a layer of protective measures in favor of specific market participants, such as European workers and consumers.33
European private international law, experts have argued, transcends its typical ‘coordination’ functions and constitutes a powerful regulatory resource for protecting vital public interests and for achieving objectives set at supranational level. Experts have thus observed a paradigm shift towards regulatory and policy considerations in transnational economic relations, in discourse and in the law. Experts are generally supportive of this shift. They reject the view that private international law still consists of a set of neutral techniques exclusively designed to protect decisional harmony and parties’ expectations. Fears of the dangers of an unregulated market have generated policy-oriented rules and overriding mandatory provisions. Recent changes thus undermine the dogma of neutrality and the classical conception of conflict of laws as mere technique.34
31 Examined in Chapters 9 and 10
32 When legal scholars discuss of the process of Europeanisation, they generally refer to positive legal developments which imply the direct and positive approximation of separate bodies of rules under the aegis of EU law. See Zimmermann, R. ‘Comparative Law and The Europeanization of Private Law’, in Reimann, Mathias and Zimmermann, Reinhard (eds.), Oxford Handbook of Comparative Law, Oxford University Press (2006). Europeanisation is thus generally understood as synonymous with the process of top-down harmonisation. Scholars use Europeanisation in this sense when referring to the various legislative measures introduced in EU law with the explicit objective of harmonising the private laws of Member States. However, Europeanisation has been also used in a diffused sense with reference to the activism and role played by the European Court of Justice (now Court of Justice of the European Union) for bringing about greater integration. According to one of the most well-established narratives in the history of the EU which was popularised by Joseph Weiler and Mauro Cappelletti, the ECJ set in motion in the 1960s a process of ‘integration through law’ in order to make up for an otherwise uncertain political and legislative process. With the lessening of the political impetus, ITL theory claims, the Court of Justice became the most essential actor in the integration. Especially relevant and illustrative were the early cases C-26/62 Van Gend en Loos [1963] ECR 13 where the ECJ declared itself a ‘new legal order of international law’, C-6/64 Costa v. ENEL [1964] ECR 585 and the later case C-120/78 Cassis de Dijon [1979] ECR 649
33 Van Den Eeckhout, Veerle. ‘The Instrumentalisation of Private International Law: Quo Vadis? Rethinking the ‘Neutrality’ of Private International Law in an Era of Globalisation and Europeanisation of Private International Law’ (2012)
34 J. Basedow, ‘Spécificité et coordination du droit international privé communautaire’, in. Travaux du comité français
