COMPETING NORMS AND EUROPEAN PRIVATE INTERNATIONAL LAW

Abstract

This article takes into account recent developments in private international
law. It focuses on finding either the “regulatory” or “liberalizing” role of PIL rules if
one has to do with “competing norms”. The central question here is whether there
is a need for a central European regulator in the regulation of PIL issues: to what
extent does central European regulation of PIL issues creates either opportunities
or risks, in the sense that States will be tempted to learn from each other either in
a positive, or in a negative way? Should regulation of PIL issues at European level
be welcomed, if one wants to avoid the “risks of unregulated competition” and if
one wants to increase the level of human rights protection within the Union? In an
attempt to answer this question, the article analyzes – seen from this perspective -
the manner in which European authorities intervened in PIL so far, and discusses
current developments and possible future actions. The analysis of the European
interference in PIL in the article includes both the promulgation of pure PIL-rules at
European level, as the European regulation of PIL-issues which occasionally occur in
regulating other areas of law, as the control of national PIL-legislation by the
European Court of Justice. To that end, I examine a number of case studies, in
which either “Europe” regulated PIL issues, or the settlement of PIL issues were left
to the Member States: international labour law; international tort law;
international family law, including international family law in interaction with other
branches of law; international company law; international contract law. The
conclusion is that European interference in PIL shows a “double face”. The
potential for European regulation of PIL issues in terms of promoting human rights
and stimulating. Member States to implement “the best law” is high and attractive.
But at the same time, it is important to be warned against creating dynamics of
race to the bottom and reduction of the level of protection of weaker parties,
precisely as a result of European interference in PIL issues. Consciousness of these
opportunities and risks is necessary if one is discussing ways of avoiding
unregulated competition and ways of encouraging the exchange of best practices.