SlideShare ist ein Scribd-Unternehmen logo
1 von 31
Choice and regulatory competition –
Rules on choice of law and forum
PIL: « weird, abstract discipline »!?
Weird: new dimension in law
But: could offer new options/strategies

• Options – and strategies: JUDGE to address and/or LAW to apply
This presentation: explores some dynamics and focuses on some points of
attention of «choices/options/shopping-possibilities » in some « hot » issues
(at this moment sensitive political areas, e.g.
- labour law
- corporate social responsibility)
Focus on indirect, « disguised » ways for actors (citizens and companies) to
obtain a desired applicable law.

• Options Judge and Law!? Touches essence of PIL.
PIL: provides answers to 3 « questions »: international jurisdiction, applicable
law, recognition/enforcement
• PIL Rules from whom/from where? PIL: in essence national law
(existence of Dutch PIL, Belgian PIL etc.)
National PIL
National PIL:
– Sometimes allowing choices/shopping possibilities: e.g. partyautonomy in national rules of jurisdiction (forum-choice) and/or
applicable law (choice of law)
– Sometimes prohibiting and setting limits: « defence
mechanisms » in national PIL that allow the authorities to put a
check on unlimited forum shopping and law shopping between
legal systems, e.g.
• by invoking the plea of international public order
• or by applying specific rules that qualify as internationally mandatory
rules in the forum,
• by refusing to recognize what obtained elsewhere …
• Situation where PIL-rules are not unified: thinkable
that, e.g.
• Dutch judge applies Belgian law,
• Belgian judge applies French law,
• German judge applies German law…

- creating sometimes also options:
-

e.g. address Belgian judge (if this judge is willing to take jurisdiction
over the case) in order to obtain application of French law.

Thus: thinkable to « shop » judge in function of applicable law (thereby
taking into account possibilities to recognize and enforce in State(s)
where this matters)
Europeanisation of PIL
•

PIL in issence national law. But sometimes: PIL of a country includes international PIL-sources, e.g. European
sources.
•
•

•

Before 1997: a few European PIL-conventions (see Brussels convention on jurisdiction and recognition; Rome convention on
applicable law contracts).
Since 1997 real process of « Europeanisation » of PIL. « Tsunami’s » of PIL-regulations (and interference of Court of Justice in
national PIL)

Europeanisation: aim, ambition
-

Unification rules of recognition and enforcement, with impact of principle of « mutual recognition » (idea of free
movement of judgments within Europe)
Unification rules of jurisdiction, with impact of principle of « access to justice » (often: several European judges
competent)
Unification rules of applicable law: obtain same result everywhere in Europe. Cfr. European Commission: « One day the
courts in all the Member States of the European Union will apply the law of the same country to a given international
situation » (wouldn’t make any difference any more if address Dutch judge/Belgian judge/German judge: every judge
would apply e.g. German law)

General aims e.g. « facilitate life of citizens », legal certainty, foreseeability etc.
•

Process Europeanisation since 1997 stormy (« European tsunami’s ») but capricious (and lots of
interpretation issues).
Capricious:
not (yet) unification in all areas;
in some areas only unification of specific (part of) PIL-issues, not (yet) all 3 PIL-questions.
Shopping in situation of ongoing
Europeanisation of PIL?
•

In that situation (while process of unification proceeds but not yet – completely accomplished): citizens and companies exploring limits, « shopping », searching
for and exploring law market (exploring and using differences in PIL and
substantive law of Member States) – situation of « competing norms ».
Challenging Court of Justice: request to Court of Justice to allow this under
circumstances.

•

E.g. At the time of case Hadadi: European unification of PIL-rules in area of
divorce partly accomplished. Procedural PIL-aspects unified (unification of rules of
jurisdiction and recognition – see Brussels II bis regulation), applicable law not yet
unified. Brussels II bis regulation: often several European judges competent
(« access to justice ») and almost no obstacles to recognition of divorce (« mutual
recognition »: MS has to recognize divorce, even if would have decided otherwise).
Thus: Brussels II bis in force before unification rules applicable law achieved
In that context: preliminary question to the Court Justice in case Hadadi
C-168/08 16 july 2009
Case Hadadi: couple with dual nationality (French-Hungarian; living for
very long time in France);
man tries to obtain advantage by addressing Hungarian judge
(Hungarian judge: Hungarian PIL: Hungarian divorce law;
French judge: Frech PIL: French divorce law.
Hungarian divorce law advantageous for man).
Issue about jurisdiction of Hungarian judge (on basis of article of
Brussels II bis regulation). Honoured by Court of Justice.
Effect: Man can « get » law elsewhere.
(recognition of Hungarian divorce subsequently guaranteed within Europe
– see Brussels II bis)
ECJ Hadadi (interpretation of article in
European Brussels II bis regulation)
• Thus: in a situation of ongoing – but not yet completed
– unification (unified European rules of application
« under construction »): if both partners dual FrenchHungarian nationality and domiciled for long time in
France: man allowed to address Hungarian judge, thus
« escaping » French rules of applicable law which
would have been advantageous for women (with also
possible effects on issues of maintenance etc.).
• Effect: (allow) « Rush to the court » (at the expense of
the defendant: the defendant (in this case the woman)
has to follow the plaintiff (in this case the man)
« Rome III »: unification of rules of
applicable law in SOME MS
• was situation at time Hadadi (2009)
• Now: Rome III regulation (European unification rules of
applicable law) – including possibility of choice of law –
(and Maintenance regulation).
Awareness: if unification rules applicable law, in principle no
possibility any more to obtain different results in member
states (all member states apply same law)
• But Rome III not in force in all Member States (enhanced
cooperation). Rules of applicable law only unified in PART
of MS. Thus: still possibilities shop in function of
applicable law divorce/substantive divorce law
(still, to a certain extent, « rush to the court »)
Rome III not in force in all MS!?
Reluctance Member States regarding
unification!? of PIL-Rules in all MS).
• Rome III: not in force in all MS (thus, no unification

Reticence some MS, problems and objections against unification, Rome III:
e.g. different PIL-visions, different developments in PIL, sometimes linked
to differences in substantive law (e.g. rules of applicable law divorce Rome
III seen by some MS as too liberal/by others as not liberal enough; some
MS: problems with allowing choice of law in this area. Thus: only way to
obtain at least a partly unification: « enhanced cooperation » by some MS.

• More in general reticence unification: sometimes already fears and
reluctance regarding unification of rules of recognition
– E.g. Fears « U-turn constructions » by actors, especially by own citizens (get
desired result elsewhere, obtain subsequently recognition in own country?)
– E.g. Fears « domino-effects »: change rules of recognition – change rules of
applicable law – change rules of substantive law!? (allegations of « reverse
discrimination by own citizens?, differences between « international » and
«national » (purely internal) situations etc.?
– See e.g. issues about same-sex marriages
Meanwhile (while working on European
regulations, sometimes « faltering » process):
ECJ: control of national PIL on conformity with
European law

• (national PIL « threatened » by Court of
Justice)
• 2 areas where not (yet) real PIL- unification:
1. law of names,
2. company law
1. Interference Court of Justice in
(international) law of names of MS
• See mainly Garcia avello (C-148/02, 2 October 2003 and Grunkin
(C-353/06, 14 October 2008).
• Belgium enforced to accept possibility to change (in Belgium) name
of Belgian-Spanish Children according to Spanish law; Germany
enforced to recognize law of German child according to Danish law
(where child was born and given name according to Danish PIL)
• In essence: process of « liberalisation » seems to be going
on, citizens challege, Court of Justice honours.
• European « Push-factors »: freedom of movement EU-citizens, European
citizenship, principle of non-discrimination of citizens. Concerns about
avoiding « limping situations ».

(In Grunkin: some considerations about « required connection »
(artificial constructions), see e.g. opinion advocate-general nr. 86 and
87)
2. Interference Court of Justice in
International company law of MS
•
•

•
•

Company law: see mainly Centros (C- 212/97, 9 March 1997) and Inspire Art (C-167/01, 30
September 2003)
Situations e.g. company formed in one MS but carrying on its activities in another MS: application
of the company law of the MS where activities (e.g. in order to protect the interests of others)?
(establishment of a branch by a company – issue of not carrying on any actual business in MS which
company law is required to apply – circumvention of national company law? Inspire Art: European
law in relation to Dutch legislation (« the wet op de formeel buitenlandse vennootschappen »)
under which « formally foreign companies » are subject to certain provisions of national law
concerning in particular registration in the commercial registar, the minimum capital, the keeping of
books, annual accounts etc.
« shopping /fraud »?
Court of Justice: (European « push-factor ») freedom of establishment European companies.
Considerations e.g. nr. 24 and 27 in Centros, nr. 86, 120, 132 and 138 in Inspire art. Shopping.
Allowed.

See e.g. Centros nr 24 « It is true that according to the case-law of the Court a Member State is entitled to take measures designed to prevent certain of its nationals from
attempting, undercover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent inidividuals form improperly or fraudently
taking advantage of provisions of Community law (…) »
Nr 27 That being so, the fact that a national of a Member State who wishes to set up a company chooses to form it in the Member State whose rules of company seem to
him the least restrictive and set up branches in other Member States cannot, in itself, constitute an abuse of the right of establishment. The right to form a company in
accordance with the law of a Member State and to set up branches in other Member States is inherent in the exercise, in a single market, of the freedom of establishment
guaranteed by the Treaty. »
Thus: national defence mechanisms
sometimes broken up by Court of
Justice
•

•
•

•

Thus: can « get » something elsewhere; what get there can make valid and « transfer » – national
defence mechanisms PIL neutralized by ECJ (cfr. Inspire Art, cfr. Grunkin) – unless fraud, and only
fraud if completely artificial – what is that? (e.g. post-box office in company law – see e.g.
Cadbury, C-196/04, 12 September 2006?; cfr. Some considerations in e.g. cases Grunkin (see above)
and Inspire Art)? If not completely artificial, will be honoured? Thus: competing norms, `law
market`?
Citizens and companies: put pressure on systems PIL/national law. Challenge national
(PIL)systems, challenge interpretation and option possibilities within regulations.
National defence mechanisms (e.g. Dutch Wet formeel Buitenlandse vennootschappen in Dutch
international company law – against attempts to (artificially) get and transfer rights from
elsewhere) sometimes broken up by Court of Justice. In that case: national dikes destroyed by
Court of Justice. Asked for by citizens/companies.

Thus: undermining national PIL and ultimately even national substantive law?? At least in specific
international situations allowed to « escape » from and « get out » national system? PIL as
controlled by European Court allows citizens/companies to get out from system (/to « get in »
another system)
Take note: sometimes national dikes
withstand
• 1. There are exceptions: Court « approves » dike . E.g. in law of
names, case Wittgenstein (C-208/09, 22 December 2010): national
dike, (refusal to recognize name obtained elsewhere, refusal based
on law of the MS – Austria - with constitutional status abolishing
the nobility in that State: in Austria, Austrian citizens are not
authorised to bear titles of nobility including those of foreign origin:
confers a certain social status on a person) withstands.
• 2. Sometimes, after interference Court of Justice, Member States
still go on the same way in a « non-European situation ». E.g. Dutch
international company law: national mechanism still used regarding
non-European companies. Then: dike only destroyed regarding
European situations (remarkable then: in European situations
(allowed) « shopping », in non-European situations (forbidden)
« fraud »).
What if rules of applicable law are
unified in Europe?
• Foregoing (law of names and company law): Cases of court in issues where
no European Unification of rules of applicable law (yet)
Hereafter: when European legislator has intervened in rules of applicable law:
European unification rules applicable law
– Idea: MS A applies law X, MS B applies law X, MS C applies law X etc. (cfr
above «one day … »)
– Context:
• often judges of several MS made competent (often also possibility of forum
choice), often recognition of judgments of these judges in principle guaranteed within
Europe.
• Often still differences between MS regarding substantive law.
In that situation (where still differences in substantive law): what law will be indicated as
the applicable law?? Law market here, in situation of competing norms? Connecting
factor, (European) PIL-mechanisms offering possibilities?

When unification of rules of applicable law: exclusion of shopping options, or
just the opposite/still possibilities??
In case of European unification of rules
of applicable law
• Sometimes: possibilities choice of law
e.g.
In article 3 Rome I (contracts) (broad option, but issue of possibility
to opt for `European sales law`),
in article 14 Rome II (torts)
in article 5 Rome III (divorce, see above)
sometimes with restrictions (e.g. when weak party can’t deprive himself of
certain rights – see e.g. article 6 Rome Convention; see also restrictions e.g. in
article 3 par. 3 (internal situation) and par. 4 (when chosen for law other than
that of a MS) Rome I Regulation, article 14 par. 1 a (time) Rome II
Regulation, article 5 (limitation of laws) Rome III Regulation)
Thus, if choice of law allowed and used: direct possibility to choose together
for applicable law; all MS will apply this chosen law (and when
European/national rules of recognition allow recognition: recognition (of
judgment in which this law has been applied) is assured and guaranteed.
• Where no choice of law by parties (not allowed/not used):
possible to « choose » in an « indirect » way?
Hereafter some remarks on issue:
does connecting factor « honour » strategic practices by one
(powerful) party;
does connecting factor lend itself to strategic use by one
(powerful) party?
Or: Which possibilities left, leaving (too much) possibilities to
powerful party?
Short exploration in 2 areas:
Corporate Social Responsibility (Rome II) and
International Labour Law (Rome Convention/Rome I).
Risks of « unregulated competition? », « regulatory competition »?
1. Corporate Social Responsibility
With focus on International environment pollution
• European unified Rules applicable law torts: Rome II
Main rule article 4: apply law of the country in which damage occurs.
(« Unless otherwise provided for in this Regulation the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the
damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or the countries in which the indirect
consequences of that event occur »).

What if companies try to « export » risks e.g. environment pollution?
Main rule article 4, but special rule in article 7 – environmental damage:
unilateral choice of law for victim
« The law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such
damage shall be the law determined persuant to Article 4 (1), unless the person seeking compensation for damage chooses to base his or her claim on the
claim on the law of the country in which the event giving rise to the damage occurred »

Muir-Watt: « Article 7 = tool of governance » (against risks of unregulated
market, competition between systems – risks of strategic practices of
companies)
Muir watt : « in need of uniform choice of laws as tools of governance designed to fulfill the requirements of economic due process on a Community level. (…) thus, for
instance, the cost of a law providing for lax standards of environmental protection should not be exported towards a neighbouring state with different priorities: in cases of
cross-border pollution, environmental damage caused in the latter state by firms legally using low standards of protection on the other side of the frontier must be
internalized by application of the more protective rules. » Muir-Watt refers to article 7 Rome II as a recent choice of law provision wchich has integrated this
What if damage occurred outside
Europe?
E.g. Shell Nigeria?
But what if damage outside Europe?
Jessurun D’Oliveira in 1997 : « There are polluters who intentionally set up the locus damni abroad. In this respect one
can think of the many nuclear power stations situated along borders, but also of situations like Bhopal (…) whereby
dangerous production processes are located in cheap countries, countries where not only labour, but also lives are
cheap. “
Anno 2013: which law applies in those cases?? (when a European judge is addressed)
If application, nowadays, of unified rules of applicable law: article 4 Rome II/Article 7 Rome II: « it pays » to handle this
way?? Practice not punished by PIL? European rules no tool of governance, regulating risks of competition of systems
(but rather the opposite?) ?

Depends i.a. on the interpretation/margin given to article 7 Rome II Regulation: e.g., if law of country where damage
occurred is not giving many possibilities to victim: possible to give interpretation to article 7 Rome II allowing victim to
choose for rules of a European country ? (issues around « duty of care », interpretation of « country in which the event
giving rise to the damage occurred »: also where policy decisions were or should have been taken, headquarter?
Cfr. Possible use of mechanisms in Rome II Regulation such as « public order », « rules of immediate application »?
Realize: European Rome II Regulation functions in context of Globalisation. Implications for global economy.
In that context of globalisation:

European PIL as another tool of power
in hands of powerful party?
« Care should be taken that PIL is not reduced to an instrument of power in
the hands of the stronger party, who can use it in order to benefit even more
from a situation of « competing norms ». In the dynamics of a situation of
competing norms, PIL should not lend itself to be used to the detriment of
the structurally weaker party and close all doors for victims ».
Risk: PIL increases even further parties’ inequality?
2. International labour law
•

Rome convention and Rome I Regulation: special rule on law applicable to
international employment contracts.

•

Employee considered to be « weak party », in need of PIL-protection. Distinction
when choice/when no choice
– Possibility choice of law, but limitations choice of law (employee can’t deprive himself of
certain rights)
– When no choice of law: special connecting factor, focused on place of « habitual working ».
•

Attention:
–
–
–

•

law of the country in which the employee habitually carries out his work in performance of the contract even if he
is temporarly employed in another country
When no habitual place of work: law of the country of engaging place of business of the employer
« escape-clause ».

= Idea to protect employee in PIL.
• But: in European context, with differences in substantive
labour law between countries: employer allowed to rely on
(low) labour conditions of country where employer
established/from where employees are sent out to another
country, whith higher labour standards?
E.g. when posting employee from eastern to westernEuropean country?
Competition by companies on labour conditions within
Europe?
(If and as far as allowed: so called risk « Social
dumping », and issue of lack of protection of mobile employee
(treated worse than local employees)?
(Historical)
Historical development, background, evolution: (focus on issue of posting of workers within Europe)
•
If MS wants to combat application of lower labour standards from « country of origin » of employer and apply its
own higher labour standards: company could (try to) rely on « freedom of services » when posting an employee –
application of (higher) labour standards risks to be seen as an (unjustified?) obstacle to freedom of services of
company. National defence mechanism using articles of Rome Convention (e.g. specific interpretation of article
6/using article 7) risks to clash with European freedom of services.
•

Several years: case to case approach by Court of Justice

•

1996: Intervention European legislator: « Posting directive »: obligation to respect certain labour conditions of
country where (temporarily) working – as a minimum. Posting directive: application of local law upon a certain
level guaranteed and even obliged (in order to avoid social dumping and guarantee minimum protection of mobile
employee)

•

Muir-Watt: « = tool of governance » (Posting Directive – including kind of unification of rules of immediate
application – presented as « uniform choice of law rule » functioning as a tool of governance.

Muir Watt: « Posting workers employed under lax labor standards to a host state with higher social protection in order to benefit from the competive
advantage of low cost labor requires application of local law for the duration of the posting in order to avoid unhealthy distorsions of competition between
firms. » Muir-Watt refers to Posting Directive as tool of governance choice of law provision uniform choice of law rule

•

(Afterwards much ado about « country of origin principle » in proposal Bolkestein directive; but not put through)
Employee = weak party, « given
protection ». But …
But after Posting Directive, more recently: Cases Court of Justice Viking, Laval etc. Posting Directive
considered to be a maximum? Country of origin principle realized by Court? Discussions in literature on
interpretation of these cases.

Muir-Watt: « Here, as recent conflicts of laws implicating both economic freedoms and workers` rights
have shown, the Court of justice is invested with an important balancing function which clearly overflows
into the political sphere. «
Also here (cfr. Environment pollution, where party who already benefits from situation is « sustained » by
PIL?): issue of « leaving possibilities to companies »? PIL-rules favorise party who can unilaterally decide
where to etablish its company?

Court of Justice: Koelzch and Voogsgeerd:
- only apply law of the engaging place of business if no centre of work (+broad interpretation of « centre of
work »).
- And considerations about risks of abuse of employer of connecting factor « engaging place of business »
in case Voosgeerd (C -384/10, 15 December 2011; opinion nr. 70 and 73 about « risk of abuse »; judgment
nr. 49 and 51 about hypothesis that the employer is trying to abuse the connecting factor to procure the
application of the law that is not favourable for the employee – when is that?)
But (even if « engaging place of business » only comes forward as a connecting factor if employee has
no place of habitual work (and, perhaps, ways to combat « abuse »), still:) what e.g. about situation of
« temporarily working » - still apply law of country of place of habitual work? And what about e.g.
possible collisions with freedom of services?
Could ask e.g.
to reconsider/refine connecting factor/give a specific interpretation to article 6? Need to
« correct » sometimes applicable law in specific cases ? – e.g. by using escape-clause of article 6 Rome
Convention?
(Take care: recently Court of Justice Schlecker C-64/12, 12 September 2013 on escape-clause. Court
considers i.a. in nr. 34: « In so far as the objective of Article 6 of the Rome Convention is to guarantee
adequate protection for the employee, that provision must ensure that the law applied to the
employment contract is the law of the country with which that contract is most closely connected.
However (…) that interpretation must not automatically result in the application, in all cases, of the law
most favourable to the worker. »)
to give space to MS to apply mechanisms e.g. exception of public order/rules of immediate
application – as already made possible in Rome convention?
Discussions going on …
PIL is not « neutral » in this area …
•

At this moment: in the Netherlands, discussions around certain « constructions », see e.g. Case FNV/De Mooij
(« Polish construction » - called the « Polish temporary workers construction »).

(FNV Bondgenoten (trade union)), Polish Posted Truck Drivers. Nico Mooij Dutch person. Nico Mooij NL international transport company, Nico Moij Poland
Polish temporary employment agency – mr Nico Mooij Director.
Nico Mooij NL hires all drivers through Nico Mooy Poland. Polish drivers, outsourced to Nico Mooij on the basis of a Polish employment contract with Nico
Mooij Poland. Effect: Polish drivers earn substantially less than their Dutch colleageus emoployed with other transport companies

Question of whether Dutch law applies to the Polish temporary agency workers. Kantonrechter Venlo and Court in
appeal: reasoning on the basis of article 6 Rome Convention that Dutch specific labour condidtions applicable ( Polish
Posted Truck Drivers fall under cao declared generally binding)
Kantonrechter Venlo 10 augustus 2011 Hof ´s Hertogenbosch 28 mei 2013 LJN CA 1457
Centre of Work of employees considered to be in the Netherlands (reasoning that Dutch law would have been applied
if no choice of Polish law would have been made).
•
•
•

Various Legal arguments here. E.g. old and new visions on PIL, impact of Europan freedom of establishment and
services - versus impact of European freedom of movement (and European citizenship, non-discrimation: pushing
towards application – as a minimum – of local law?)?
Possible impact on PIL from various sides, sometimes in opposite directions.
Observation: in any case, PIL does make a difference in this area, does influence how this area is regulated – PIL
is not « neutral » in this area.
PIL clearly in fields of forces
(in European and Global context)
Discussions on foundations of PIL, on influence from various
sides on PIL.
See area of torts, international environment pollution,
see area of contracts, international
employments contracts.

Discussions on impact European freedoms (sometimes
themselves even pushing PIL in opposite directions e.g.
freedom of services/freedom of movement), human rights
etc.
(Cfr. E.g. area of international defamation)
Europe (EU and ECJ) as a central regulator, protecting
weak party and human rights: risks and possibilities.
double face?
•

From a broader perspective, question arises whether the competition between legal systems may ultimately be at
the expense of the level of protection of human rights and the protection of weak parties.

•

In this competition: Europe a – suitable - central regulator?

•

A European regulator with two faces??
- « Europe » (interference of European institutions in PIL) sometimes at the root of race to the bottom mechanisms and
situations sometimes seen as excesses that unregulated competition may give rise to
(with effect of reduction of the level of protection of weaker parties?)
–
See e.g. effects of freedom of establishment in international company law? (Centros, Inspire Art)
–
See e.g. effects of article 6 Rome Convention in international labour law? (allowing social dumping?)
–
See e.g. possible effects of freedom of establishment and freedom of services on international labour law? (allowing companies unilaterally to (try to)
obtain the application of law that disadvantages the employee)
–
See e.g. article 4 Rome II Regulation; see e.g. article 7 Rome II Regulation – as far as given a particular interpretation?

- « Europe » also sometimes saveguearding rights of weaker parties, limiting risks of competition?
• See e.g. Posting Directive? (saveguarding a minimum protection to employee)
• See possible effects of freedom of movement on PIL? (allowing employees to obtain the application – as a minimum – of local law?)
• See e.g. article 7 Rome II Regulation as far as given a particular interpretation?

Above: just in selective way but subsequently, question arises:
Regulatory function PIL!!??
PIL and Social Justice
• In any case:
need to be conscious of the role of PIL (As Robert Wai recently said in
the area of international economic law: the question is not IF PIL has a
role to play, but WHICH role)
• Need to be conscious of how ultimately application of PIL-rules
works out for « weak parties »/protection of human
rights/protection of environment, within and outside Europe.
• Scholars: concept of « environmental social justice » and PIL. Also
broader « Social justice » and PIL, role for PIL in
guaranteeing/achieving social justice?
• Foregoing: selective presentation (which might give an
imcomplete/distorted picture), but idea to present some points of
attention. In any case: appeal to be alert for role European/national
PIL in guaranteeing/achieving social justice. Be aware of the
concrete effects of weird, abstract discipline of PIL!
More:
• Publications of Hans Ulrich Jessurun d’Oliveira e.g. on international
environment law (see e.g. http://www.olijfmetperen.nl/CV-ulli.pdf )
• Publications of Ugljesa Grusic (see
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2209425 and
http://etheses.lse.ac.uk/583/ )
• Publications of Horatia Muir-Watt, http://conflictoflaws.net/2008/guesteditorial-muir-watt-on-reshaping-private-international-law-in-a-changingworld/ and research presented on http://blogs.sciences-po.fr/pilagg/
• Publications of Veerle Van Den Eeckhout (see e.g.
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=919707
especially http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1259363
and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1259334
• Publications of Robert Wai (see e.g.
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=114304 )

Weitere ähnliche Inhalte

Was ist angesagt?

Rules of International Jurisdiction in the Context of the "Second Generation"...
Rules of International Jurisdiction in the Context of the "Second Generation"...Rules of International Jurisdiction in the Context of the "Second Generation"...
Rules of International Jurisdiction in the Context of the "Second Generation"...Veerle Van Den Eeckhout
 
CJEU case law on Cross-Border Enforcement
CJEU case law on Cross-Border EnforcementCJEU case law on Cross-Border Enforcement
CJEU case law on Cross-Border EnforcementVeerle Van Den Eeckhout
 
EPO and ESCP in Luxembourg - EEO in France
EPO and ESCP in Luxembourg - EEO in FranceEPO and ESCP in Luxembourg - EEO in France
EPO and ESCP in Luxembourg - EEO in FranceVeerle Van Den Eeckhout
 
Presentazione PPT - Lezione Insubria 29022016
Presentazione PPT - Lezione Insubria 29022016Presentazione PPT - Lezione Insubria 29022016
Presentazione PPT - Lezione Insubria 29022016Andrea Zoccali
 
International Business Law Ch 3
International Business Law Ch  3International Business Law Ch  3
International Business Law Ch 3Frank Cavaliere
 
International Commercial Arbitration
International Commercial ArbitrationInternational Commercial Arbitration
International Commercial Arbitrationijtsrd
 
‌International bussiness law
‌International bussiness law‌International bussiness law
‌International bussiness lawAnuj Malhotra
 
European Union1
European Union1European Union1
European Union1JSB
 
Codification of International Law
Codification of International LawCodification of International Law
Codification of International LawMuhammad Bilal
 
International Business Law Ch. 2
International Business Law Ch. 2International Business Law Ch. 2
International Business Law Ch. 2Frank Cavaliere
 
Civil Law slide 8
Civil Law slide 8Civil Law slide 8
Civil Law slide 8m4rkpower
 
Foreign and International Legal Research
Foreign and International Legal ResearchForeign and International Legal Research
Foreign and International Legal ResearchSaskia Mehlhorn
 

Was ist angesagt? (20)

Rules of International Jurisdiction in the Context of the "Second Generation"...
Rules of International Jurisdiction in the Context of the "Second Generation"...Rules of International Jurisdiction in the Context of the "Second Generation"...
Rules of International Jurisdiction in the Context of the "Second Generation"...
 
CJEU case law on Cross-Border Enforcement
CJEU case law on Cross-Border EnforcementCJEU case law on Cross-Border Enforcement
CJEU case law on Cross-Border Enforcement
 
EPO and ESCP in Luxembourg - EEO in France
EPO and ESCP in Luxembourg - EEO in FranceEPO and ESCP in Luxembourg - EEO in France
EPO and ESCP in Luxembourg - EEO in France
 
Presentazione PPT - Lezione Insubria 29022016
Presentazione PPT - Lezione Insubria 29022016Presentazione PPT - Lezione Insubria 29022016
Presentazione PPT - Lezione Insubria 29022016
 
Treaties 2013
Treaties 2013Treaties 2013
Treaties 2013
 
International Business Law Ch 3
International Business Law Ch  3International Business Law Ch  3
International Business Law Ch 3
 
International Commercial Arbitration
International Commercial ArbitrationInternational Commercial Arbitration
International Commercial Arbitration
 
Jacobs University Bremen International Trade Law - Lecture 2: WTO and DSU
Jacobs University Bremen International Trade Law - Lecture 2: WTO and DSUJacobs University Bremen International Trade Law - Lecture 2: WTO and DSU
Jacobs University Bremen International Trade Law - Lecture 2: WTO and DSU
 
Jacobs University Bremen International Trade Law - Lecture 4: RTAs, PTAs and ...
Jacobs University Bremen International Trade Law - Lecture 4: RTAs, PTAs and ...Jacobs University Bremen International Trade Law - Lecture 4: RTAs, PTAs and ...
Jacobs University Bremen International Trade Law - Lecture 4: RTAs, PTAs and ...
 
Jacobs University Bremen International Trade Law - Lecture 3: WCO Basics
Jacobs University Bremen International Trade Law - Lecture 3: WCO BasicsJacobs University Bremen International Trade Law - Lecture 3: WCO Basics
Jacobs University Bremen International Trade Law - Lecture 3: WCO Basics
 
Human rights law resources
Human rights law resources Human rights law resources
Human rights law resources
 
International business law
International business lawInternational business law
International business law
 
Legal History
Legal History Legal History
Legal History
 
‌International bussiness law
‌International bussiness law‌International bussiness law
‌International bussiness law
 
European Union1
European Union1European Union1
European Union1
 
LAW3PIL- Public International Law
LAW3PIL- Public International LawLAW3PIL- Public International Law
LAW3PIL- Public International Law
 
Codification of International Law
Codification of International LawCodification of International Law
Codification of International Law
 
International Business Law Ch. 2
International Business Law Ch. 2International Business Law Ch. 2
International Business Law Ch. 2
 
Civil Law slide 8
Civil Law slide 8Civil Law slide 8
Civil Law slide 8
 
Foreign and International Legal Research
Foreign and International Legal ResearchForeign and International Legal Research
Foreign and International Legal Research
 

Andere mochten auch

Technology Transfer in an Emerging Economy
Technology Transfer in an Emerging EconomyTechnology Transfer in an Emerging Economy
Technology Transfer in an Emerging EconomyMarcel Mongeon
 
Claims Handling Issues for Contractors
Claims Handling Issues for ContractorsClaims Handling Issues for Contractors
Claims Handling Issues for ContractorsClydeCoOffshore
 
Business Law: Types of Jurisdiction
Business Law: Types of Jurisdiction Business Law: Types of Jurisdiction
Business Law: Types of Jurisdiction Paul Donion
 
P m01 inside_selling
P m01 inside_sellingP m01 inside_selling
P m01 inside_sellingFitira
 
P m02 inside_selling_managerswrap
P m02 inside_selling_managerswrapP m02 inside_selling_managerswrap
P m02 inside_selling_managerswrapFitira
 
Anatomyofa twitterrumor
Anatomyofa twitterrumorAnatomyofa twitterrumor
Anatomyofa twitterrumorGnip
 
Evaluation for the music magazine
Evaluation for the music magazineEvaluation for the music magazine
Evaluation for the music magazineLiam Wylie
 
Plt process (category products)
Plt process (category products)Plt process (category products)
Plt process (category products)Fitira
 
internationalization of education, Bologna process and Belarus in Bologna pro...
internationalization of education, Bologna process and Belarus in Bologna pro...internationalization of education, Bologna process and Belarus in Bologna pro...
internationalization of education, Bologna process and Belarus in Bologna pro...Taciana Tuluš-Aleksandrovič
 
Voting presentation
Voting presentationVoting presentation
Voting presentationhannahfenney
 
Android vs ios
Android vs iosAndroid vs ios
Android vs iosgndolf
 
Steps presentation
Steps presentationSteps presentation
Steps presentationLiam Wylie
 
M00 about this_course
M00 about this_courseM00 about this_course
M00 about this_courseFitira
 
Cloud Computing mit OpenStack
Cloud Computing mit OpenStackCloud Computing mit OpenStack
Cloud Computing mit OpenStackB1 Systems GmbH
 
Streamline client deployments with customised installation packages
Streamline client deployments with customised installation packagesStreamline client deployments with customised installation packages
Streamline client deployments with customised installation packagesChristian Petters
 
Simplify and run your development environments with Vagrant on OpenStack
Simplify and run your development environments with Vagrant on OpenStackSimplify and run your development environments with Vagrant on OpenStack
Simplify and run your development environments with Vagrant on OpenStackB1 Systems GmbH
 
班级新变化
班级新变化班级新变化
班级新变化jody531
 
Bunny booktemplate1
Bunny booktemplate1Bunny booktemplate1
Bunny booktemplate1mjbeichner
 
성공하는모바일비즈니스패러다임
성공하는모바일비즈니스패러다임성공하는모바일비즈니스패러다임
성공하는모바일비즈니스패러다임gndolf
 

Andere mochten auch (20)

Technology Transfer in an Emerging Economy
Technology Transfer in an Emerging EconomyTechnology Transfer in an Emerging Economy
Technology Transfer in an Emerging Economy
 
Claims Handling Issues for Contractors
Claims Handling Issues for ContractorsClaims Handling Issues for Contractors
Claims Handling Issues for Contractors
 
Business Law: Types of Jurisdiction
Business Law: Types of Jurisdiction Business Law: Types of Jurisdiction
Business Law: Types of Jurisdiction
 
P m01 inside_selling
P m01 inside_sellingP m01 inside_selling
P m01 inside_selling
 
P m02 inside_selling_managerswrap
P m02 inside_selling_managerswrapP m02 inside_selling_managerswrap
P m02 inside_selling_managerswrap
 
Anatomyofa twitterrumor
Anatomyofa twitterrumorAnatomyofa twitterrumor
Anatomyofa twitterrumor
 
Evaluation for the music magazine
Evaluation for the music magazineEvaluation for the music magazine
Evaluation for the music magazine
 
Plt process (category products)
Plt process (category products)Plt process (category products)
Plt process (category products)
 
internationalization of education, Bologna process and Belarus in Bologna pro...
internationalization of education, Bologna process and Belarus in Bologna pro...internationalization of education, Bologna process and Belarus in Bologna pro...
internationalization of education, Bologna process and Belarus in Bologna pro...
 
Voting presentation
Voting presentationVoting presentation
Voting presentation
 
Android vs ios
Android vs iosAndroid vs ios
Android vs ios
 
Steps presentation
Steps presentationSteps presentation
Steps presentation
 
M00 about this_course
M00 about this_courseM00 about this_course
M00 about this_course
 
Cloud Computing mit OpenStack
Cloud Computing mit OpenStackCloud Computing mit OpenStack
Cloud Computing mit OpenStack
 
Streamline client deployments with customised installation packages
Streamline client deployments with customised installation packagesStreamline client deployments with customised installation packages
Streamline client deployments with customised installation packages
 
Simplify and run your development environments with Vagrant on OpenStack
Simplify and run your development environments with Vagrant on OpenStackSimplify and run your development environments with Vagrant on OpenStack
Simplify and run your development environments with Vagrant on OpenStack
 
班级新变化
班级新变化班级新变化
班级新变化
 
Bunny booktemplate1
Bunny booktemplate1Bunny booktemplate1
Bunny booktemplate1
 
26 28
26 2826 28
26 28
 
성공하는모바일비즈니스패러다임
성공하는모바일비즈니스패러다임성공하는모바일비즈니스패러다임
성공하는모바일비즈니스패러다임
 

Ähnlich wie Choice and regulatory competition - Rules on choice of law and forum

International Business.ppt
International Business.pptInternational Business.ppt
International Business.pptMbabba2
 
PRIVATE INTERNATIONAL LAW By Sonali Renuse
PRIVATE INTERNATIONAL LAW  By Sonali RenusePRIVATE INTERNATIONAL LAW  By Sonali Renuse
PRIVATE INTERNATIONAL LAW By Sonali Renusesonalirenuse2
 
CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...Veerle Van Den Eeckhout
 
CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...Veerle Van Den Eeckhout
 
Taxpayers' Fundamental Rights and Due Process Clause
Taxpayers' Fundamental Rights and Due Process ClauseTaxpayers' Fundamental Rights and Due Process Clause
Taxpayers' Fundamental Rights and Due Process ClauseUniversity of Ferrara
 
Chapter 8 legal environmentmajor l
Chapter 8 legal environmentmajor lChapter 8 legal environmentmajor l
Chapter 8 legal environmentmajor lARIV4
 
Mak. lektion 1 eng
Mak. lektion 1 engMak. lektion 1 eng
Mak. lektion 1 engUllaterese
 
Gvca internet jurisdiction_ssrn
Gvca internet jurisdiction_ssrnGvca internet jurisdiction_ssrn
Gvca internet jurisdiction_ssrnbenjamindocquir
 
S. Beth Farmer: "Resolving Competition Related Disputes Under the AML."
S. Beth Farmer: "Resolving Competition Related Disputes Under the AML."S. Beth Farmer: "Resolving Competition Related Disputes Under the AML."
S. Beth Farmer: "Resolving Competition Related Disputes Under the AML."Larry Catá Backer
 

Ähnlich wie Choice and regulatory competition - Rules on choice of law and forum (20)

Rajini.ppt
Rajini.pptRajini.ppt
Rajini.ppt
 
International Business.ppt
International Business.pptInternational Business.ppt
International Business.ppt
 
PRIVATE INTERNATIONAL LAW By Sonali Renuse
PRIVATE INTERNATIONAL LAW  By Sonali RenusePRIVATE INTERNATIONAL LAW  By Sonali Renuse
PRIVATE INTERNATIONAL LAW By Sonali Renuse
 
International Patent Law Research :Tools and Strategies
International Patent Law Research :Tools and StrategiesInternational Patent Law Research :Tools and Strategies
International Patent Law Research :Tools and Strategies
 
CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...
 
International Commercial Law
International Commercial LawInternational Commercial Law
International Commercial Law
 
2011 06 jira wessels
2011 06 jira wessels2011 06 jira wessels
2011 06 jira wessels
 
PRIVATE INTERNATIONAL LAW.pdf
PRIVATE INTERNATIONAL LAW.pdfPRIVATE INTERNATIONAL LAW.pdf
PRIVATE INTERNATIONAL LAW.pdf
 
IBL12.ppt
IBL12.pptIBL12.ppt
IBL12.ppt
 
IBL12.ppt
IBL12.pptIBL12.ppt
IBL12.ppt
 
IBL12.ppt
IBL12.pptIBL12.ppt
IBL12.ppt
 
CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...
 
Taxpayers' Fundamental Rights and Due Process Clause
Taxpayers' Fundamental Rights and Due Process ClauseTaxpayers' Fundamental Rights and Due Process Clause
Taxpayers' Fundamental Rights and Due Process Clause
 
Competition and democracy – FORRESTER– December 2017 OECD discussion
Competition and democracy – FORRESTER– December 2017 OECD discussionCompetition and democracy – FORRESTER– December 2017 OECD discussion
Competition and democracy – FORRESTER– December 2017 OECD discussion
 
Chapter 8 legal environmentmajor l
Chapter 8 legal environmentmajor lChapter 8 legal environmentmajor l
Chapter 8 legal environmentmajor l
 
Mak. lektion 1 eng
Mak. lektion 1 engMak. lektion 1 eng
Mak. lektion 1 eng
 
Gvca internet jurisdiction_ssrn
Gvca internet jurisdiction_ssrnGvca internet jurisdiction_ssrn
Gvca internet jurisdiction_ssrn
 
IBL5.ppt
IBL5.pptIBL5.ppt
IBL5.ppt
 
IBL5.ppt
IBL5.pptIBL5.ppt
IBL5.ppt
 
S. Beth Farmer: "Resolving Competition Related Disputes Under the AML."
S. Beth Farmer: "Resolving Competition Related Disputes Under the AML."S. Beth Farmer: "Resolving Competition Related Disputes Under the AML."
S. Beth Farmer: "Resolving Competition Related Disputes Under the AML."
 

Mehr von Veerle Van Den Eeckhout

CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...Veerle Van Den Eeckhout
 
Harmonized interpretation of regimes of Judicial cooperation in civil matters...
Harmonized interpretation of regimes of Judicial cooperation in civil matters...Harmonized interpretation of regimes of Judicial cooperation in civil matters...
Harmonized interpretation of regimes of Judicial cooperation in civil matters...Veerle Van Den Eeckhout
 
Harmonized interpretation of regimes of Judicial cooperation in civil matters...
Harmonized interpretation of regimes of Judicial cooperation in civil matters...Harmonized interpretation of regimes of Judicial cooperation in civil matters...
Harmonized interpretation of regimes of Judicial cooperation in civil matters...Veerle Van Den Eeckhout
 
European uniform procedures: a French and Luxembourgish perspective
European uniform procedures: a French and Luxembourgish perspectiveEuropean uniform procedures: a French and Luxembourgish perspective
European uniform procedures: a French and Luxembourgish perspectiveVeerle Van Den Eeckhout
 
Corporate Social Responsibility - Aspects de droit international privé
Corporate Social Responsibility - Aspects de droit international privéCorporate Social Responsibility - Aspects de droit international privé
Corporate Social Responsibility - Aspects de droit international privéVeerle Van Den Eeckhout
 
Détachement - Aspects de droit international privé
Détachement - Aspects de droit international privéDétachement - Aspects de droit international privé
Détachement - Aspects de droit international privéVeerle Van Den Eeckhout
 
Gastcollege "Internationaal verbintenissenrecht: enkele actuele knelpunten"
Gastcollege "Internationaal verbintenissenrecht: enkele actuele knelpunten"Gastcollege "Internationaal verbintenissenrecht: enkele actuele knelpunten"
Gastcollege "Internationaal verbintenissenrecht: enkele actuele knelpunten"Veerle Van Den Eeckhout
 
Internationaal privaatrecht en fundamentele rechten. Ipr als instrument ter b...
Internationaal privaatrecht en fundamentele rechten. Ipr als instrument ter b...Internationaal privaatrecht en fundamentele rechten. Ipr als instrument ter b...
Internationaal privaatrecht en fundamentele rechten. Ipr als instrument ter b...Veerle Van Den Eeckhout
 
Boek 10 BW en plaats Boek 10 ten aanzien van supranationale ipr-regelgeving d...
Boek 10 BW en plaats Boek 10 ten aanzien van supranationale ipr-regelgeving d...Boek 10 BW en plaats Boek 10 ten aanzien van supranationale ipr-regelgeving d...
Boek 10 BW en plaats Boek 10 ten aanzien van supranationale ipr-regelgeving d...Veerle Van Den Eeckhout
 
Ontwikkelingen in het internationaal arbeidsrecht
Ontwikkelingen in het internationaal arbeidsrechtOntwikkelingen in het internationaal arbeidsrecht
Ontwikkelingen in het internationaal arbeidsrechtVeerle Van Den Eeckhout
 
Actualiteiten IPR: Nieuw Boek 10 BW; What's new in het ipr?
Actualiteiten IPR: Nieuw Boek 10 BW; What's new in het ipr?Actualiteiten IPR: Nieuw Boek 10 BW; What's new in het ipr?
Actualiteiten IPR: Nieuw Boek 10 BW; What's new in het ipr?Veerle Van Den Eeckhout
 

Mehr von Veerle Van Den Eeckhout (11)

CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...CJEU case-law. A few observations on recent CJEU case law with attention for ...
CJEU case-law. A few observations on recent CJEU case law with attention for ...
 
Harmonized interpretation of regimes of Judicial cooperation in civil matters...
Harmonized interpretation of regimes of Judicial cooperation in civil matters...Harmonized interpretation of regimes of Judicial cooperation in civil matters...
Harmonized interpretation of regimes of Judicial cooperation in civil matters...
 
Harmonized interpretation of regimes of Judicial cooperation in civil matters...
Harmonized interpretation of regimes of Judicial cooperation in civil matters...Harmonized interpretation of regimes of Judicial cooperation in civil matters...
Harmonized interpretation of regimes of Judicial cooperation in civil matters...
 
European uniform procedures: a French and Luxembourgish perspective
European uniform procedures: a French and Luxembourgish perspectiveEuropean uniform procedures: a French and Luxembourgish perspective
European uniform procedures: a French and Luxembourgish perspective
 
Corporate Social Responsibility - Aspects de droit international privé
Corporate Social Responsibility - Aspects de droit international privéCorporate Social Responsibility - Aspects de droit international privé
Corporate Social Responsibility - Aspects de droit international privé
 
Détachement - Aspects de droit international privé
Détachement - Aspects de droit international privéDétachement - Aspects de droit international privé
Détachement - Aspects de droit international privé
 
Gastcollege "Internationaal verbintenissenrecht: enkele actuele knelpunten"
Gastcollege "Internationaal verbintenissenrecht: enkele actuele knelpunten"Gastcollege "Internationaal verbintenissenrecht: enkele actuele knelpunten"
Gastcollege "Internationaal verbintenissenrecht: enkele actuele knelpunten"
 
Internationaal privaatrecht en fundamentele rechten. Ipr als instrument ter b...
Internationaal privaatrecht en fundamentele rechten. Ipr als instrument ter b...Internationaal privaatrecht en fundamentele rechten. Ipr als instrument ter b...
Internationaal privaatrecht en fundamentele rechten. Ipr als instrument ter b...
 
Boek 10 BW en plaats Boek 10 ten aanzien van supranationale ipr-regelgeving d...
Boek 10 BW en plaats Boek 10 ten aanzien van supranationale ipr-regelgeving d...Boek 10 BW en plaats Boek 10 ten aanzien van supranationale ipr-regelgeving d...
Boek 10 BW en plaats Boek 10 ten aanzien van supranationale ipr-regelgeving d...
 
Ontwikkelingen in het internationaal arbeidsrecht
Ontwikkelingen in het internationaal arbeidsrechtOntwikkelingen in het internationaal arbeidsrecht
Ontwikkelingen in het internationaal arbeidsrecht
 
Actualiteiten IPR: Nieuw Boek 10 BW; What's new in het ipr?
Actualiteiten IPR: Nieuw Boek 10 BW; What's new in het ipr?Actualiteiten IPR: Nieuw Boek 10 BW; What's new in het ipr?
Actualiteiten IPR: Nieuw Boek 10 BW; What's new in het ipr?
 

Choice and regulatory competition - Rules on choice of law and forum

  • 1. Choice and regulatory competition – Rules on choice of law and forum
  • 2. PIL: « weird, abstract discipline »!? Weird: new dimension in law But: could offer new options/strategies • Options – and strategies: JUDGE to address and/or LAW to apply This presentation: explores some dynamics and focuses on some points of attention of «choices/options/shopping-possibilities » in some « hot » issues (at this moment sensitive political areas, e.g. - labour law - corporate social responsibility) Focus on indirect, « disguised » ways for actors (citizens and companies) to obtain a desired applicable law. • Options Judge and Law!? Touches essence of PIL. PIL: provides answers to 3 « questions »: international jurisdiction, applicable law, recognition/enforcement • PIL Rules from whom/from where? PIL: in essence national law (existence of Dutch PIL, Belgian PIL etc.)
  • 3. National PIL National PIL: – Sometimes allowing choices/shopping possibilities: e.g. partyautonomy in national rules of jurisdiction (forum-choice) and/or applicable law (choice of law) – Sometimes prohibiting and setting limits: « defence mechanisms » in national PIL that allow the authorities to put a check on unlimited forum shopping and law shopping between legal systems, e.g. • by invoking the plea of international public order • or by applying specific rules that qualify as internationally mandatory rules in the forum, • by refusing to recognize what obtained elsewhere …
  • 4. • Situation where PIL-rules are not unified: thinkable that, e.g. • Dutch judge applies Belgian law, • Belgian judge applies French law, • German judge applies German law… - creating sometimes also options: - e.g. address Belgian judge (if this judge is willing to take jurisdiction over the case) in order to obtain application of French law. Thus: thinkable to « shop » judge in function of applicable law (thereby taking into account possibilities to recognize and enforce in State(s) where this matters)
  • 5. Europeanisation of PIL • PIL in issence national law. But sometimes: PIL of a country includes international PIL-sources, e.g. European sources. • • • Before 1997: a few European PIL-conventions (see Brussels convention on jurisdiction and recognition; Rome convention on applicable law contracts). Since 1997 real process of « Europeanisation » of PIL. « Tsunami’s » of PIL-regulations (and interference of Court of Justice in national PIL) Europeanisation: aim, ambition - Unification rules of recognition and enforcement, with impact of principle of « mutual recognition » (idea of free movement of judgments within Europe) Unification rules of jurisdiction, with impact of principle of « access to justice » (often: several European judges competent) Unification rules of applicable law: obtain same result everywhere in Europe. Cfr. European Commission: « One day the courts in all the Member States of the European Union will apply the law of the same country to a given international situation » (wouldn’t make any difference any more if address Dutch judge/Belgian judge/German judge: every judge would apply e.g. German law) General aims e.g. « facilitate life of citizens », legal certainty, foreseeability etc. • Process Europeanisation since 1997 stormy (« European tsunami’s ») but capricious (and lots of interpretation issues). Capricious: not (yet) unification in all areas; in some areas only unification of specific (part of) PIL-issues, not (yet) all 3 PIL-questions.
  • 6. Shopping in situation of ongoing Europeanisation of PIL? • In that situation (while process of unification proceeds but not yet – completely accomplished): citizens and companies exploring limits, « shopping », searching for and exploring law market (exploring and using differences in PIL and substantive law of Member States) – situation of « competing norms ». Challenging Court of Justice: request to Court of Justice to allow this under circumstances. • E.g. At the time of case Hadadi: European unification of PIL-rules in area of divorce partly accomplished. Procedural PIL-aspects unified (unification of rules of jurisdiction and recognition – see Brussels II bis regulation), applicable law not yet unified. Brussels II bis regulation: often several European judges competent (« access to justice ») and almost no obstacles to recognition of divorce (« mutual recognition »: MS has to recognize divorce, even if would have decided otherwise). Thus: Brussels II bis in force before unification rules applicable law achieved
  • 7. In that context: preliminary question to the Court Justice in case Hadadi C-168/08 16 july 2009 Case Hadadi: couple with dual nationality (French-Hungarian; living for very long time in France); man tries to obtain advantage by addressing Hungarian judge (Hungarian judge: Hungarian PIL: Hungarian divorce law; French judge: Frech PIL: French divorce law. Hungarian divorce law advantageous for man). Issue about jurisdiction of Hungarian judge (on basis of article of Brussels II bis regulation). Honoured by Court of Justice. Effect: Man can « get » law elsewhere. (recognition of Hungarian divorce subsequently guaranteed within Europe – see Brussels II bis)
  • 8. ECJ Hadadi (interpretation of article in European Brussels II bis regulation) • Thus: in a situation of ongoing – but not yet completed – unification (unified European rules of application « under construction »): if both partners dual FrenchHungarian nationality and domiciled for long time in France: man allowed to address Hungarian judge, thus « escaping » French rules of applicable law which would have been advantageous for women (with also possible effects on issues of maintenance etc.). • Effect: (allow) « Rush to the court » (at the expense of the defendant: the defendant (in this case the woman) has to follow the plaintiff (in this case the man)
  • 9. « Rome III »: unification of rules of applicable law in SOME MS • was situation at time Hadadi (2009) • Now: Rome III regulation (European unification rules of applicable law) – including possibility of choice of law – (and Maintenance regulation). Awareness: if unification rules applicable law, in principle no possibility any more to obtain different results in member states (all member states apply same law) • But Rome III not in force in all Member States (enhanced cooperation). Rules of applicable law only unified in PART of MS. Thus: still possibilities shop in function of applicable law divorce/substantive divorce law (still, to a certain extent, « rush to the court »)
  • 10. Rome III not in force in all MS!? Reluctance Member States regarding unification!? of PIL-Rules in all MS). • Rome III: not in force in all MS (thus, no unification Reticence some MS, problems and objections against unification, Rome III: e.g. different PIL-visions, different developments in PIL, sometimes linked to differences in substantive law (e.g. rules of applicable law divorce Rome III seen by some MS as too liberal/by others as not liberal enough; some MS: problems with allowing choice of law in this area. Thus: only way to obtain at least a partly unification: « enhanced cooperation » by some MS. • More in general reticence unification: sometimes already fears and reluctance regarding unification of rules of recognition – E.g. Fears « U-turn constructions » by actors, especially by own citizens (get desired result elsewhere, obtain subsequently recognition in own country?) – E.g. Fears « domino-effects »: change rules of recognition – change rules of applicable law – change rules of substantive law!? (allegations of « reverse discrimination by own citizens?, differences between « international » and «national » (purely internal) situations etc.? – See e.g. issues about same-sex marriages
  • 11. Meanwhile (while working on European regulations, sometimes « faltering » process): ECJ: control of national PIL on conformity with European law • (national PIL « threatened » by Court of Justice) • 2 areas where not (yet) real PIL- unification: 1. law of names, 2. company law
  • 12. 1. Interference Court of Justice in (international) law of names of MS • See mainly Garcia avello (C-148/02, 2 October 2003 and Grunkin (C-353/06, 14 October 2008). • Belgium enforced to accept possibility to change (in Belgium) name of Belgian-Spanish Children according to Spanish law; Germany enforced to recognize law of German child according to Danish law (where child was born and given name according to Danish PIL) • In essence: process of « liberalisation » seems to be going on, citizens challege, Court of Justice honours. • European « Push-factors »: freedom of movement EU-citizens, European citizenship, principle of non-discrimination of citizens. Concerns about avoiding « limping situations ». (In Grunkin: some considerations about « required connection » (artificial constructions), see e.g. opinion advocate-general nr. 86 and 87)
  • 13. 2. Interference Court of Justice in International company law of MS • • • • Company law: see mainly Centros (C- 212/97, 9 March 1997) and Inspire Art (C-167/01, 30 September 2003) Situations e.g. company formed in one MS but carrying on its activities in another MS: application of the company law of the MS where activities (e.g. in order to protect the interests of others)? (establishment of a branch by a company – issue of not carrying on any actual business in MS which company law is required to apply – circumvention of national company law? Inspire Art: European law in relation to Dutch legislation (« the wet op de formeel buitenlandse vennootschappen ») under which « formally foreign companies » are subject to certain provisions of national law concerning in particular registration in the commercial registar, the minimum capital, the keeping of books, annual accounts etc. « shopping /fraud »? Court of Justice: (European « push-factor ») freedom of establishment European companies. Considerations e.g. nr. 24 and 27 in Centros, nr. 86, 120, 132 and 138 in Inspire art. Shopping. Allowed. See e.g. Centros nr 24 « It is true that according to the case-law of the Court a Member State is entitled to take measures designed to prevent certain of its nationals from attempting, undercover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent inidividuals form improperly or fraudently taking advantage of provisions of Community law (…) » Nr 27 That being so, the fact that a national of a Member State who wishes to set up a company chooses to form it in the Member State whose rules of company seem to him the least restrictive and set up branches in other Member States cannot, in itself, constitute an abuse of the right of establishment. The right to form a company in accordance with the law of a Member State and to set up branches in other Member States is inherent in the exercise, in a single market, of the freedom of establishment guaranteed by the Treaty. »
  • 14. Thus: national defence mechanisms sometimes broken up by Court of Justice • • • • Thus: can « get » something elsewhere; what get there can make valid and « transfer » – national defence mechanisms PIL neutralized by ECJ (cfr. Inspire Art, cfr. Grunkin) – unless fraud, and only fraud if completely artificial – what is that? (e.g. post-box office in company law – see e.g. Cadbury, C-196/04, 12 September 2006?; cfr. Some considerations in e.g. cases Grunkin (see above) and Inspire Art)? If not completely artificial, will be honoured? Thus: competing norms, `law market`? Citizens and companies: put pressure on systems PIL/national law. Challenge national (PIL)systems, challenge interpretation and option possibilities within regulations. National defence mechanisms (e.g. Dutch Wet formeel Buitenlandse vennootschappen in Dutch international company law – against attempts to (artificially) get and transfer rights from elsewhere) sometimes broken up by Court of Justice. In that case: national dikes destroyed by Court of Justice. Asked for by citizens/companies. Thus: undermining national PIL and ultimately even national substantive law?? At least in specific international situations allowed to « escape » from and « get out » national system? PIL as controlled by European Court allows citizens/companies to get out from system (/to « get in » another system)
  • 15. Take note: sometimes national dikes withstand • 1. There are exceptions: Court « approves » dike . E.g. in law of names, case Wittgenstein (C-208/09, 22 December 2010): national dike, (refusal to recognize name obtained elsewhere, refusal based on law of the MS – Austria - with constitutional status abolishing the nobility in that State: in Austria, Austrian citizens are not authorised to bear titles of nobility including those of foreign origin: confers a certain social status on a person) withstands. • 2. Sometimes, after interference Court of Justice, Member States still go on the same way in a « non-European situation ». E.g. Dutch international company law: national mechanism still used regarding non-European companies. Then: dike only destroyed regarding European situations (remarkable then: in European situations (allowed) « shopping », in non-European situations (forbidden) « fraud »).
  • 16. What if rules of applicable law are unified in Europe? • Foregoing (law of names and company law): Cases of court in issues where no European Unification of rules of applicable law (yet) Hereafter: when European legislator has intervened in rules of applicable law: European unification rules applicable law – Idea: MS A applies law X, MS B applies law X, MS C applies law X etc. (cfr above «one day … ») – Context: • often judges of several MS made competent (often also possibility of forum choice), often recognition of judgments of these judges in principle guaranteed within Europe. • Often still differences between MS regarding substantive law. In that situation (where still differences in substantive law): what law will be indicated as the applicable law?? Law market here, in situation of competing norms? Connecting factor, (European) PIL-mechanisms offering possibilities? When unification of rules of applicable law: exclusion of shopping options, or just the opposite/still possibilities??
  • 17. In case of European unification of rules of applicable law • Sometimes: possibilities choice of law e.g. In article 3 Rome I (contracts) (broad option, but issue of possibility to opt for `European sales law`), in article 14 Rome II (torts) in article 5 Rome III (divorce, see above) sometimes with restrictions (e.g. when weak party can’t deprive himself of certain rights – see e.g. article 6 Rome Convention; see also restrictions e.g. in article 3 par. 3 (internal situation) and par. 4 (when chosen for law other than that of a MS) Rome I Regulation, article 14 par. 1 a (time) Rome II Regulation, article 5 (limitation of laws) Rome III Regulation) Thus, if choice of law allowed and used: direct possibility to choose together for applicable law; all MS will apply this chosen law (and when European/national rules of recognition allow recognition: recognition (of judgment in which this law has been applied) is assured and guaranteed.
  • 18. • Where no choice of law by parties (not allowed/not used): possible to « choose » in an « indirect » way? Hereafter some remarks on issue: does connecting factor « honour » strategic practices by one (powerful) party; does connecting factor lend itself to strategic use by one (powerful) party? Or: Which possibilities left, leaving (too much) possibilities to powerful party? Short exploration in 2 areas: Corporate Social Responsibility (Rome II) and International Labour Law (Rome Convention/Rome I). Risks of « unregulated competition? », « regulatory competition »?
  • 19. 1. Corporate Social Responsibility With focus on International environment pollution • European unified Rules applicable law torts: Rome II Main rule article 4: apply law of the country in which damage occurs. (« Unless otherwise provided for in this Regulation the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or the countries in which the indirect consequences of that event occur »). What if companies try to « export » risks e.g. environment pollution? Main rule article 4, but special rule in article 7 – environmental damage: unilateral choice of law for victim « The law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined persuant to Article 4 (1), unless the person seeking compensation for damage chooses to base his or her claim on the claim on the law of the country in which the event giving rise to the damage occurred » Muir-Watt: « Article 7 = tool of governance » (against risks of unregulated market, competition between systems – risks of strategic practices of companies) Muir watt : « in need of uniform choice of laws as tools of governance designed to fulfill the requirements of economic due process on a Community level. (…) thus, for instance, the cost of a law providing for lax standards of environmental protection should not be exported towards a neighbouring state with different priorities: in cases of cross-border pollution, environmental damage caused in the latter state by firms legally using low standards of protection on the other side of the frontier must be internalized by application of the more protective rules. » Muir-Watt refers to article 7 Rome II as a recent choice of law provision wchich has integrated this
  • 20. What if damage occurred outside Europe? E.g. Shell Nigeria? But what if damage outside Europe? Jessurun D’Oliveira in 1997 : « There are polluters who intentionally set up the locus damni abroad. In this respect one can think of the many nuclear power stations situated along borders, but also of situations like Bhopal (…) whereby dangerous production processes are located in cheap countries, countries where not only labour, but also lives are cheap. “ Anno 2013: which law applies in those cases?? (when a European judge is addressed) If application, nowadays, of unified rules of applicable law: article 4 Rome II/Article 7 Rome II: « it pays » to handle this way?? Practice not punished by PIL? European rules no tool of governance, regulating risks of competition of systems (but rather the opposite?) ? Depends i.a. on the interpretation/margin given to article 7 Rome II Regulation: e.g., if law of country where damage occurred is not giving many possibilities to victim: possible to give interpretation to article 7 Rome II allowing victim to choose for rules of a European country ? (issues around « duty of care », interpretation of « country in which the event giving rise to the damage occurred »: also where policy decisions were or should have been taken, headquarter? Cfr. Possible use of mechanisms in Rome II Regulation such as « public order », « rules of immediate application »? Realize: European Rome II Regulation functions in context of Globalisation. Implications for global economy.
  • 21. In that context of globalisation: European PIL as another tool of power in hands of powerful party? « Care should be taken that PIL is not reduced to an instrument of power in the hands of the stronger party, who can use it in order to benefit even more from a situation of « competing norms ». In the dynamics of a situation of competing norms, PIL should not lend itself to be used to the detriment of the structurally weaker party and close all doors for victims ». Risk: PIL increases even further parties’ inequality?
  • 22. 2. International labour law • Rome convention and Rome I Regulation: special rule on law applicable to international employment contracts. • Employee considered to be « weak party », in need of PIL-protection. Distinction when choice/when no choice – Possibility choice of law, but limitations choice of law (employee can’t deprive himself of certain rights) – When no choice of law: special connecting factor, focused on place of « habitual working ». • Attention: – – – • law of the country in which the employee habitually carries out his work in performance of the contract even if he is temporarly employed in another country When no habitual place of work: law of the country of engaging place of business of the employer « escape-clause ». = Idea to protect employee in PIL.
  • 23. • But: in European context, with differences in substantive labour law between countries: employer allowed to rely on (low) labour conditions of country where employer established/from where employees are sent out to another country, whith higher labour standards? E.g. when posting employee from eastern to westernEuropean country? Competition by companies on labour conditions within Europe? (If and as far as allowed: so called risk « Social dumping », and issue of lack of protection of mobile employee (treated worse than local employees)?
  • 24. (Historical) Historical development, background, evolution: (focus on issue of posting of workers within Europe) • If MS wants to combat application of lower labour standards from « country of origin » of employer and apply its own higher labour standards: company could (try to) rely on « freedom of services » when posting an employee – application of (higher) labour standards risks to be seen as an (unjustified?) obstacle to freedom of services of company. National defence mechanism using articles of Rome Convention (e.g. specific interpretation of article 6/using article 7) risks to clash with European freedom of services. • Several years: case to case approach by Court of Justice • 1996: Intervention European legislator: « Posting directive »: obligation to respect certain labour conditions of country where (temporarily) working – as a minimum. Posting directive: application of local law upon a certain level guaranteed and even obliged (in order to avoid social dumping and guarantee minimum protection of mobile employee) • Muir-Watt: « = tool of governance » (Posting Directive – including kind of unification of rules of immediate application – presented as « uniform choice of law rule » functioning as a tool of governance. Muir Watt: « Posting workers employed under lax labor standards to a host state with higher social protection in order to benefit from the competive advantage of low cost labor requires application of local law for the duration of the posting in order to avoid unhealthy distorsions of competition between firms. » Muir-Watt refers to Posting Directive as tool of governance choice of law provision uniform choice of law rule • (Afterwards much ado about « country of origin principle » in proposal Bolkestein directive; but not put through)
  • 25. Employee = weak party, « given protection ». But … But after Posting Directive, more recently: Cases Court of Justice Viking, Laval etc. Posting Directive considered to be a maximum? Country of origin principle realized by Court? Discussions in literature on interpretation of these cases. Muir-Watt: « Here, as recent conflicts of laws implicating both economic freedoms and workers` rights have shown, the Court of justice is invested with an important balancing function which clearly overflows into the political sphere. « Also here (cfr. Environment pollution, where party who already benefits from situation is « sustained » by PIL?): issue of « leaving possibilities to companies »? PIL-rules favorise party who can unilaterally decide where to etablish its company? Court of Justice: Koelzch and Voogsgeerd: - only apply law of the engaging place of business if no centre of work (+broad interpretation of « centre of work »). - And considerations about risks of abuse of employer of connecting factor « engaging place of business » in case Voosgeerd (C -384/10, 15 December 2011; opinion nr. 70 and 73 about « risk of abuse »; judgment nr. 49 and 51 about hypothesis that the employer is trying to abuse the connecting factor to procure the application of the law that is not favourable for the employee – when is that?)
  • 26. But (even if « engaging place of business » only comes forward as a connecting factor if employee has no place of habitual work (and, perhaps, ways to combat « abuse »), still:) what e.g. about situation of « temporarily working » - still apply law of country of place of habitual work? And what about e.g. possible collisions with freedom of services? Could ask e.g. to reconsider/refine connecting factor/give a specific interpretation to article 6? Need to « correct » sometimes applicable law in specific cases ? – e.g. by using escape-clause of article 6 Rome Convention? (Take care: recently Court of Justice Schlecker C-64/12, 12 September 2013 on escape-clause. Court considers i.a. in nr. 34: « In so far as the objective of Article 6 of the Rome Convention is to guarantee adequate protection for the employee, that provision must ensure that the law applied to the employment contract is the law of the country with which that contract is most closely connected. However (…) that interpretation must not automatically result in the application, in all cases, of the law most favourable to the worker. ») to give space to MS to apply mechanisms e.g. exception of public order/rules of immediate application – as already made possible in Rome convention? Discussions going on …
  • 27. PIL is not « neutral » in this area … • At this moment: in the Netherlands, discussions around certain « constructions », see e.g. Case FNV/De Mooij (« Polish construction » - called the « Polish temporary workers construction »). (FNV Bondgenoten (trade union)), Polish Posted Truck Drivers. Nico Mooij Dutch person. Nico Mooij NL international transport company, Nico Moij Poland Polish temporary employment agency – mr Nico Mooij Director. Nico Mooij NL hires all drivers through Nico Mooy Poland. Polish drivers, outsourced to Nico Mooij on the basis of a Polish employment contract with Nico Mooij Poland. Effect: Polish drivers earn substantially less than their Dutch colleageus emoployed with other transport companies Question of whether Dutch law applies to the Polish temporary agency workers. Kantonrechter Venlo and Court in appeal: reasoning on the basis of article 6 Rome Convention that Dutch specific labour condidtions applicable ( Polish Posted Truck Drivers fall under cao declared generally binding) Kantonrechter Venlo 10 augustus 2011 Hof ´s Hertogenbosch 28 mei 2013 LJN CA 1457 Centre of Work of employees considered to be in the Netherlands (reasoning that Dutch law would have been applied if no choice of Polish law would have been made). • • • Various Legal arguments here. E.g. old and new visions on PIL, impact of Europan freedom of establishment and services - versus impact of European freedom of movement (and European citizenship, non-discrimation: pushing towards application – as a minimum – of local law?)? Possible impact on PIL from various sides, sometimes in opposite directions. Observation: in any case, PIL does make a difference in this area, does influence how this area is regulated – PIL is not « neutral » in this area.
  • 28. PIL clearly in fields of forces (in European and Global context) Discussions on foundations of PIL, on influence from various sides on PIL. See area of torts, international environment pollution, see area of contracts, international employments contracts. Discussions on impact European freedoms (sometimes themselves even pushing PIL in opposite directions e.g. freedom of services/freedom of movement), human rights etc. (Cfr. E.g. area of international defamation)
  • 29. Europe (EU and ECJ) as a central regulator, protecting weak party and human rights: risks and possibilities. double face? • From a broader perspective, question arises whether the competition between legal systems may ultimately be at the expense of the level of protection of human rights and the protection of weak parties. • In this competition: Europe a – suitable - central regulator? • A European regulator with two faces?? - « Europe » (interference of European institutions in PIL) sometimes at the root of race to the bottom mechanisms and situations sometimes seen as excesses that unregulated competition may give rise to (with effect of reduction of the level of protection of weaker parties?) – See e.g. effects of freedom of establishment in international company law? (Centros, Inspire Art) – See e.g. effects of article 6 Rome Convention in international labour law? (allowing social dumping?) – See e.g. possible effects of freedom of establishment and freedom of services on international labour law? (allowing companies unilaterally to (try to) obtain the application of law that disadvantages the employee) – See e.g. article 4 Rome II Regulation; see e.g. article 7 Rome II Regulation – as far as given a particular interpretation? - « Europe » also sometimes saveguearding rights of weaker parties, limiting risks of competition? • See e.g. Posting Directive? (saveguarding a minimum protection to employee) • See possible effects of freedom of movement on PIL? (allowing employees to obtain the application – as a minimum – of local law?) • See e.g. article 7 Rome II Regulation as far as given a particular interpretation? Above: just in selective way but subsequently, question arises: Regulatory function PIL!!??
  • 30. PIL and Social Justice • In any case: need to be conscious of the role of PIL (As Robert Wai recently said in the area of international economic law: the question is not IF PIL has a role to play, but WHICH role) • Need to be conscious of how ultimately application of PIL-rules works out for « weak parties »/protection of human rights/protection of environment, within and outside Europe. • Scholars: concept of « environmental social justice » and PIL. Also broader « Social justice » and PIL, role for PIL in guaranteeing/achieving social justice? • Foregoing: selective presentation (which might give an imcomplete/distorted picture), but idea to present some points of attention. In any case: appeal to be alert for role European/national PIL in guaranteeing/achieving social justice. Be aware of the concrete effects of weird, abstract discipline of PIL!
  • 31. More: • Publications of Hans Ulrich Jessurun d’Oliveira e.g. on international environment law (see e.g. http://www.olijfmetperen.nl/CV-ulli.pdf ) • Publications of Ugljesa Grusic (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2209425 and http://etheses.lse.ac.uk/583/ ) • Publications of Horatia Muir-Watt, http://conflictoflaws.net/2008/guesteditorial-muir-watt-on-reshaping-private-international-law-in-a-changingworld/ and research presented on http://blogs.sciences-po.fr/pilagg/ • Publications of Veerle Van Den Eeckhout (see e.g. http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=919707 especially http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1259363 and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1259334 • Publications of Robert Wai (see e.g. http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=114304 )