Private International Law, quo vadis
PIL as a perfect conductor for achieving political objectives?
A Tale of Lost InnocenceBefore long a new book will be added to the Dutch Civil Code: on 1 January 2012 Book 10 will enter into force (1). Book 10 codifies Dutch private international law (‘PIL’). PIL lawyers may be sorely tempted to devote all their energy to the presentation and interpretation of the rules of Book 10, because it seems reasonable to assume that the lengthy codification process has also involved a process of reflection on PIL. Even so, the completion of the codification process marks the perfect time to make an appeal to both PIL lawyers and non-PIL lawyers to reflect on PIL once again, albeit from a special angle: if PIL is studied as a discipline that is not isolated from other branches of law but that interacts with these other branches; if it is recognised how PIL is occasionally ‘used’ as a vehicle to achieve policy objectives or may at least make a difference; if it is revealed that PIL may act as a ‘hinge’, and if it is recognised that interaction with PIL may make a difference in various debates in which PIL initially did not seem to be an essential factor, then, the burning question arises how PIL should be ‘used’ in the future and what our attitude should be towards future PIL developments. And despite its codification, PIL will continue to evolve in the years ahead. If only as a result of the ongoing Europeanization of PIL, PIL rules may change at a fast rate in the next few years. What is more: the very phenomenon of the Europeanization of PIL is illustrative of the ‘discovery’ of PIL by European institutions as a discipline that ‘matters’ – particularly when it comes to encouraging the exercise of European freedoms, such as the free movement of persons, the freedom of establishment and the free movement of services ? and it is also illustrative of the application of PIL by many policymakers and of the occasional attempts to use PIL as a policy instrument for achieving objectives beyond the scope of PIL itself. A recent example illustrating the dynamics of the ‘discovery’ of PIL at the Dutch national level is the attempt to base rules of international marriage law on migration targets (2). It turns out that in the view of the Dutch legislator, PIL could have a role to play in the current migration and integration debate.
By now, the significance of PIL rules has become apparent in various current debates, as is shown by topics such as the regulation of international posting of workers within Europe or the liability of multinationals for environmental pollution outside Europe or international corporate social responsibility (3); in addition, both these topics are perfectly suitable as case studies exploring the role of PIL rules in decisions on whether to permit companies to take advantage of differences between legal systems. These case studies may also give a picture of the potential of PIL for the advocates of ‘social justice’. By now, the role PIL rules could play in addressing situations of ‘competing norms’ in a globalising world is attracting increasing international attention (4). But what is or should be the role of PIL? Does it have a ‘neutral’ role? Is PIL ‘neutral’ in the sense that PIL rules are supposed to result in the application of the legal system that is ‘most closely connected’ in any case – following on from the ‘neutral PIL’ as expounded by Von Savigny? Or is PIL ‘neutral’ in quite a different sense by now, namely that PIL is apparently unable to resist attempts to use this branch of law instrumentally and to mould it into a shape that best suits the result needed? Is PIL degenerating into a political tool, with the resulting loss of its innocence? But what is the position of modern trends in PIL where there is a focus on concerns like the protection of weaker parties? Can a specific PIL trend be opted for ‘à la carte’, so to speak, depending on whether it suits the requirements of the case, as in a pick and choose system? What interests can or may PIL serve at the end of the day? Writing from the Kamerlingh Onnes Building in Leiden, where ‘100 years of superconductivity’ was commemorated recently and where the profile area called ‘Interaction between Legal Systems’ was launched recently as well, I find it hard to resist the temptation to define the issue at hand in terms of conductivity or superconductivity and the interaction between legal systems: how good a ‘(super)conductor’ is PIL when it comes to attempting to control the result needed; is PIL neutral once brought on the ‘right’ temperature, is PIL the ‘path of least resistance’, what is the internal resistance of PIL itself? How does PIL interact with various disciplines and how does PIL itself affect the interaction between various legal systems? A scrutiny of some case studies- focusing, inter alia, on the interaction between international family law and the free movement of persons/migration law, the interaction between international labour law and European law, the interaction between international tort law and developments concerning the liability of multinationals for human rights violations- may enable a general view to be developed on the role, resistance levels and individual character of PIL. Unless one should conclude that a distinction should be made based on the characteristics of each case study: for example, a distinction based on whether PIL rules are invoked in an intra-Community context, or a distinction based on the question whether or not the pressure exercised by European freedoms on PIL rules drives PIL in the same direction. An examination of and reflection on PIL from this perspective requires answering both legal-technical and legal policy questions. These are tough questions; but an attempt to answer these may offer some guidance to those who will find themselves in the midst of the turbulent developments that will affect PIL, whether codified or not, in the years ahead.
(1) The Act of 19 May 2011 adopting and implementing Book 10 (Private International Law) of the Dutch Civil Code, Bulletin of Acts and Decrees 2011, 272. Decree of 28 June 2011 fixing the time of entry into force of the Adoption and Implementation Act of Book 10, Bulletin of Acts and Decrees 2011, 340. (2) See the Proposal for a Bill on Marriage and Family Migration, TK 2009-2010, 32175. If the PIL provisions included in this bill are enacted, the provisions of Book 10 of the Dutch Civil Code on international marriage law will immediately be rendered obsolete by national developments. (3) Incidentally, a scrutiny of the liability of multinationals for human rights violations outside Europe reveals the extent to which not only PIL rules on applicable law but also PIL rules on international jurisdiction, such as the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, are of paramount importance in the regulation of such liability. For this reason, the current process of revision of the above regulation should be considered from this angle too. (4) See, for example, the Guest Editorial by H. Muir-Watt, in which she highlights PIL aspects of both these topics as well as her recent call for studying PIL as ‘Global Governance’.