Competing Norms and European Private International Law - Sequel to 'Promoting Human Rights within the Union : The Role of European Private International Law'

This contribution is a sequel to the article "Promoting Human Rights within the Union: the Role of European Private International Law", which was submitted as the first "Private International Law" (PIL) contribution to the Refgov-project. Like the first contribution this second contribution also discusses the importance of the discipline of PIL if the ambition is to find ways of promoting human rights within the Union, especially by exchanging "best practices". This second contribution goes further in the theoretical analysis, of course taking into account recent developments. It focuses on finding either the "regulatory" or "liberalising" role of PIL rules if one has to do with "competing norms". The central question here is whether there is a need for a central European regulator in the regulation of PIL issues: to what extent does central European regulation of PIL issues creates either opportunities or risks, in the sense that States will be tempted to learn form each other either in a positive, or in a negative way? Should regulation of PIL issues at European level be welcomed, if one wants to avoid the "risks of unregulated competition" and if one wants to increase the level of human rights protection within the Union? In an attempt to answer this question, the article analyzes - seen from this perspective - the manner in which European authorities intervened in PIL so far, and discusses current developments and possible future actions. The analysis of the European interference in PIL in the article includes both the promulgation of pure PIL-rules at European level, as the European regulation of PIL-issues which occasionally occur in regulating other areas of law, as the control of national PIL-legislation by the European Court of Justice. To that end, the author examines a number of case studies, in which either "Europe" regulated PIL issues, or the settlement of PIL issues were left to the Member States: international labour law, including international Posting of workers; international tort law, with particular emphasis on international environmental pollution and international defamation; international family law, including international family law in interaction with other branches of law; international company law; international contract law, with particular attention to consumer contracts and the project to create a European Civil Code. The conclusion is that European interference in PIL shows a "double face". The potential for European regulation of PIL issues in terms of promoting human rights and stimulating Member States to implement "the best law", is high and attractive. But at the same time, it is important to be warned against creating dynamics of race to the bottom and reduction of the level of protection of weaker parties, precisely as a result of European interference in PIL issues. Consciousness of these opportunities and risks is necessary if one is discussing ways of avoiding unregulated competition and ways of encouraging the exchange of best practices