The first issue of 2021’s International and Comparative Law Quarterly has recently been published. It features a book review by Dr. Nahel Asfour of Dr. Gianluigi Passarelli’s book titled “Contract Law in Contemporary International Commerce: Considerations on the Complex Relationship between Legal Process and Market Process in the New Era of Globalisation [Nomos, Baden-Baden, 2019]. ” It contains no other topic that is directly on private international law.
On a personal note, I have earlier read Dr. Passarelli’s book to completion at least twice, and found it to be thought provoking and interesting. Dr Passarelli proposes an approach that gives principal focus to a contract as a wealth creation mechanism in addressing private international law matters. He argues that this approach should not be rigid but allow some gap-filling by the judges to a private international law contract.
He then applies this logic to the applicable law in the absence of choice under Rome I Regulation, and challenges the approach of the European Union (“EU”) legislator for giving too much emphasis to certainty through hard and fast rules, at the expense of flexibility. In this connection, he argues that the EU legislator’s approach is contrary to the expectations of international commercial actors. The thesis of his book is that legal certainty in choice of law in determining the applicable law in the absence of choice is overrated under Rome I Regulation.
It is unlikely that the EU legislator at present will be convinced by Dr. Passarelli’s argument that elevates the role of flexibility in the choice of law process, or accept a “regression” to Article 4(5) of Rome Convention style of flexibility that produced uncertainty among Member State Courts. Legal certainty, predictability and uniformity are the cornerstone of EU private international law. My verdict is that Dr. Passarrelli’s work will remain relevant to students, scholars, practitioners, judges and legislators who prize flexibility over legal certainty in private international law.