To Unity and Beyond? The Boundaries of European Private International Law and the European Ius Commune

Abstract

The core argument for international harmonization lies in the level playing field hypothesis which posits that markets function best when all industry in the given market (in the context of international harmonization: a global market) operate in the same conditions. The alternative approach highlights the advantages of regulatory competition, including in particular the advancement of regulatory and contractual techniques through trial and error, as well as the reward for regulatory and judicial efficiency. With respect to private international law in the EU, ever increasing harmonization of the underlying substantial laws is being actively pursued by the EC. However it is supported by a perceived, or even made-up, rather than a real need, as the proposal for a Common European Sales Law shows.

Unity in diversity is the EU’s official moto. Denying the advantages of regulatory competition in the law of conflicts leads to hodgepodge and unity without diversity.

Keywords: private international law, EU, conflict of laws, harmonisation, ius commune

JEL Classification: K19, K41