Private international law and eu external relations: think local act global, or think global act local?
Summary (2 min read)
Introduction
- In the European Union, private international law has almost exclusively been developed through the adoption of internal acts (particularly EU Regulations) in the pursuit of internal goals (principally, enhancing the efficient functioning of the internal market, and more recently and broadly the construction of an area of freedom, security and justice).
- This focus has and must come under challenge in light of two developments.
- This article critically examines a range of possible techniques which might be adopted in relation to this new external dimension of EU private international law.
- Legal techniques which can be used by international actors to project policies extraterritorially.
- First, in Opinion 1/13, a Grand Chamber decision issued on 14 October 2014, the European Court of Justice confirmed that the European Union has exclusive external competence in the field of private international law, at least in subject areas in which the EU has exercised internal competence.
II. EU external competence in private international law
- It has become increasingly difficult to resist the contention that the European Union has exclusive external competence in at least most of the field of private international law.
- 4 ECJ Opinion 2/91, at [25], noting that ‘there is no contradiction between these provisions of the Convention and those of the directives mentioned’.
- But on the basis of these authorities, there is a clear case that the EU must have exclusive external competence in other areas of private international law.17.
- This means that whether a Member State court can (or indeed must) decline jurisdiction under the Regulation depends on the rules of that Member State governing recognition and enforcement of judgments from non-Member States, which are a matter of national law.
- The remainder of this article examines the possible ways in which the EU might use private international law ‘internationally’.
Goals
- Private international law rules generally reflect an openness to foreign law and legal practices, which might be described as a ‘tolerance of difference’.
- The use of public policy and other similar defences to private international law rules is generally viewed as having a negative or blocking effect – it only prevents local enforcement of the judgment, or local application of the law.
- By acting locally, to refuse certain foreign practices recognition in the EU, it is possible that EU values are projected globally, principally (although not exclusively) for the benefit of non-EU parties.
- The compatibility of these rules with public international law was challenged but upheld by the ECJ – see Air Transport Association of America (Reference for a preliminary ruling) [2011] EUECJ C-366/10.
Action
- There is an argument that elements of this approach, intentionally or otherwise, are already present in some existing practice in relation to private international law.
- The European Court of Human Rights has, however, had occasion to consider the circumstances in which Convention states (including but not of course limited to Member States of the European Union) must refuse recognition of a judgment from a non-Convention state which violates the standards of the ECHR.
- A less strict but still similar approach was followed in the earlier decision of Drozd and Janousek v France and Spain,118 in which the court had to consider whether France could imprison (on behalf of Andorra) persons convicted of criminal offences in Andorra, if the procedures which had been followed in Andorra (a non-Convention state) were noncompliant with the Convention.
Challenges
- There are three principal concerns which might be raised concerning this technique.
- It is notable that the examples above concern the Vatican and Andorra, which depend on unusually close cooperation with EU Member States.
- The second concern relates to the negative consequences of adopting this technique.
- This Act, however, controversially relies on the US First Amendment to define this minimum standard: see Mills (2008), supra n 109; Mark D. Rosen, ‘The SPEECH Act’s Unfortunate Parochialism: Of Libel Tourism and Legitimate Pluralism’ (2012) 53 Virginia Journal of International Law 99.
- If private international law rules could effectively be used to leverage other states to comply with EU policies, this technique is unlikely to be viewed favourably by states who become subject to such pressure.
V. Conclusions
- The four techniques analysed above are each distinct possibilities for an EU private international law ‘foreign policy’.
- Pursuing substantive policies through private international law exceptions could similarly have other benefits, but the effectiveness of this approach may be doubted, and it would again come at a cost in terms of the traditional values and policies embodied in private international law rules.
- While these different techniques are in various ways in tension with one another, more than one might be pursued simultaneously in a way which compromises and balances the different policy interests.
- As the EU has now apparently gained exclusive external competence in the field of private international law, at least within those fields in which it has internal competence, greater consideration should be given to the potential external as well as internal policy benefits and costs of local or global action in the field of private international law.
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"Private international law and eu ex..." refers background in this paper
...111 See generally eg C Santiso, ‘Good Governance and Aid Effectiveness: The World Bank and Conditionality’ (2001) 7 Georgetown Public Policy Review 1; C Gore, ‘The Rise and Fall of the Washington Consensus as a Paradigm for Developing Countries’ (2000) 28 World Development 789....
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...111 See generally eg C Santiso, ‘Good Governance and Aid Effectiveness: The World Bank and Conditionality’ (2001) 7 Georgetown Public Policy Review 1; C Gore, ‘The Rise and Fall of the Washington Consensus as a Paradigm for Developing Countries’ (2000) 28 World Development 789. 112 See generally J Scott, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62 AmJCompL 87; J Scott, ‘The New EU “Extraterritoriality”’ (2014) 51 CMLRev 1343. 113 Known as ‘GSP+’—see further <http://ec.europa.eu/trade/policy/countries-and-regions/ development/generalised-scheme-of-preferences/>; <http://trade.ec.europa.eu/doclib/press/index. cfm?id=1006>. 114 The compatibility of these rules with public international law was challenged but upheld by the ECJ—see Air Transport Association of America (Reference for a preliminary ruling) [2011] EUECJ C-366/10....
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...111 See generally eg C Santiso, ‘Good Governance and Aid Effectiveness: The World Bank and Conditionality’ (2001) 7 Georgetown Public Policy Review 1; C Gore, ‘The Rise and Fall of the Washington Consensus as a Paradigm for Developing Countries’ (2000) 28 World Development 789. 112 See generally J Scott, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62 AmJCompL 87; J Scott, ‘The New EU “Extraterritoriality”’ (2014) 51 CMLRev 1343....
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Frequently Asked Questions (9)
Q2. What are the future works in "Private international law and eu external relations: think local act global, or think global act local?" ?
The four techniques analysed above are each distinct possibilities for an EU private international law ‘ foreign policy ’. Each represents a different way in which private international law may be used ‘ externally ’ by the EU to effect certain policies, revealing a variety of potential purposes for private international law. The EU is already playing a significant role in the Hague Conference on Private International Law, and however difficult it may be, the payoffs for achieving international harmonisation of private international law rules would be very significant. Pursuing regional or bilateral harmonisation would address similar policy concerns in a potentially more achievable 125 See supra n 114 ; see further eg Lauren E Mullen, ‘ The European Union Overstepping its Bounds and Borders: The Extraterritorial Effect of the Emissions Trading System and its Call for Multilateral Action ’ ( 2013 ) 74 University of Pittsburgh Law Review 783 ; Brian F. Havel and John Q. Mulligan, ‘ The Triumph of Politics: Reflections on the Judgment of the Court of Justice of the European Union Validating the Inclusion of Non-EU Airlines in the Emissions Trading Scheme ’ ( 2012 ) 37 Air and Space Law 3.
Q3. What is the obvious thing the EU might do externally in relation to private international law?
A. Pursue private international law objectives through multilateral treatiesPerhaps the most obvious thing which the EU might do externally in relation to private international law is to participate in efforts to reach international harmonisation or consensus.
Q4. What is the European Commission’s commitment to ratify the conventions where the EU is?
The European Commission’s ‘Action Plan Implementing the Stockholm Programme: Delivering an area of freedom, security and justice for Europe’s citizens’ (COM/2010/0171 final, 20.4.2010) includes a commitment to ‘Continue to support the Hague Conference on Private International Law and encourage its partners to ratify the conventions where the EU is or will become a Party or where all Member States are Parties.’
Q5. What is the second technique used to achieve policy objectives?
The second technique which might be pursued under the ‘think global act local’ approach is to use private international law exceptions (rather than rules) to achieve policy objectives.
Q6. What is the primary forum in which such initiatives are negotiated?
Although there are a range of international organisations whose work may encompass questions of private international law (including UNIDROIT46 and UNCITRAL47), the primary forum in which such initiatives are negotiated is the Hague Conference on Private International Law.48
Q7. What is the main motivation for the EU to pursue multilateral harmonisation of private international law?
It is, however, probably not too cynical to suggest that the primary motivation for the EU in pursuing multilateral harmonisation of private international law is likely to be the potential for economic benefits to the EU itself from increased efficiency in global cross-border activity.
Q8. What is the alternative way of justifying the principle of subsidiarity?
(An alternative way of justifying this is as a horizontal dimension of the principle of subsidiarity – ensuring that legal decisions are made as closely as possible to those principally affected by them.
Q9. What would happen if the EU and China agreed to harmonise their private international law?
This would have the consequence that private international law would become harmonised in terms of relations between particular states, but more fragmented in terms of the rules applicable within a given state.