The Protection of Weaker Parties in the Private International Law of the European Union: A Portrait of Inconsistency and Conceptual Truancy
Journal of Private International Law [J. Priv. Int’l L.] 10 (2014), pp. 335-358
21 Pages Posted: 19 Jul 2015 Last revised: 12 Oct 2017
Date Written: December 1, 2014
The principle of party autonomy is one of the “cornerstones” of European private international law including the law of international civil procedure. It is deeply embedded in most of the regulations that have been adopted by the European legislator over the last 15 years: the Brussels I Regulation, the Rome I and II Regulations, the Maintenance Regulation as well as the Succession Regulation. However, in enacting the pertaining provisions the European legislator has opted for a sectoral approach focusing on individual legal fields. It has, thereby, lost sight of the regulation of party autonomy in other legal fields and adopted different rules to deal with the same problem. The following article sheds light on the coherence of European private international law taking the protection of weaker parties from the dangers of party autonomy as an example. It analyses which parties are perceived to be weaker in the European Private International Law of contractual and non-contractual obligations, family as well as succession law and sheds light on the various regulatory approaches applied to protect these parties. The article demonstrates that the European legislator does not follow a coherent conceptual path and argues that there is – in general – a need for a more holistic analysis of European private international law that encompasses the legal field and its underlying regulatory problems as such and across the board.
Keywords: Private International Law, International Civil Procedure, Party Autonomy, Choice of Law, Choice of Forum, Brussels I, Rome I, Rome II, Succession Regulation, Maintenance Regulation, Preferential Law Approach, Consumer Contracts, Weaker Parties
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