A Common Discourse in European Private International Law? A View from the Court System

Abstract

This paper dicusses the institutional framework and judicial infrastructure for the application of European private international law, and how these can contribute to the Europeanisation of court practice in private international law cases. First it addresses the question of why we should have a European court practice at all.Then it turns to the court practice from the perspective of the dialogue between national courts and the European court of justice. Next, it discusses the existing infrastructures in a number of Member States, and the role of emerging international commercial courts in this regard.

It is concluded that fostering a European court practice on private international law is not an end itself but a means to an end, and that is to secure the effectiveness of judicial cooperation, primarily through the proper application of the European instruments. There seems to be little evidence that European private international law is not European enough. On the contrary, the present rules seem to be functional at the national level, and fundamental reform at the EU or the national level is therefore unnecessary.

The more important challenges result from the UK’s exit from the European Union and from global perspectives. These call for a reflection on the question of how and to what extent the pan-EU legal order and the national legal orders can be usefully tied together, and for an outward look with regard to the relation to third countries in Europe and beyond. Finally, the challenges of migration, security, financial stability, and environmental protection call for a global approach to private international law questions and necessitates the EU to reach out to international organizations, notably the Hague Conference on Private International Law.

Keywords: Conflict of Laws, European Harmonisation, Judicial Systems, Court Specialisation

JEL Classification: K10, K33, K40, K41, K49