CONSISTENCY IN EU CONFLICT OF LAWS

Abstract

The pursuit of consistency in European conflict of laws is fully understandable and of pressing importance. It demands a cross-sectional analysis of a comprehensive nature in order to align the various legislative instruments and synchronize their treatment of legal issues. In respect of the practical application of European law, attention needs to be paid to promoting a convergence of international jurisdiction and the applicable law. It is frequently the case that competing policy values face off, with the result being a multi-step legal inquiry that not only is overly complicated but is in fact outside the actual domain of conflict-of-law instruments. Here as well greater consistency is in order.

As a first and essential step, the numerous inconsistencies and contradictions must be the subject of detailed research. Only then can an earnest inquiry be undertaken as to how these shortcomings are best resolved; in part, the solutions will lie in the application of legal tools and devices, such as characterization and mandatory rules, and in part a consolidation of existing instruments will be called for. The time for a comprehensive codification of European private international law, by contrast, is not yet ripe. Those striving for clarity would be advised to pursue the model of a "creeping (or expanding) codification" that initially only aggregates existing texts, e.g. the Rome I, Rome II and Brussels I Regulations. The effort, moreover, needs to be conceptualized as a form of open legislation, one capable of later absorbing additional elements such as general rules, a revised Rome III Regulation or rules in regard to maintenance.