JURIST Guest Columnist Volker Behr of the University of Augsburg says the European Community has unified many areas of international civil procedure and private international law over a short period of time. Many stakeholders will benefit from the changes and lawmakers worldwide should take note...
he Amsterdam Treaty of 1997
vested legislative competence in the European Community (EC) in the areas of international civil procedure and private international law by transferring the Title on visas, asylum, immigration and other policies related to free movement of persons into the Treaty on European Community (TEC). In 2009, the Lisbon Treaties, the Treaty on European Union (TEU) and the Functioning of the European Union (TFEU), have inherited this competence and even enlarged it to a certain degree in Title V Chapter 3 of the TFEU on Judicial Cooperation in Civil Matters.
Based on former Article 65 TEC - now Article 81 TFEU - the EC began legislating in 2000. Some regulations replaced and modified pre-existing Member State conventions, some replaced and modified Hague Conventions among Member States, and some were entirely new. Together they cover almost all major issues of international civil procedure.
Council Regulation (EC) No 1346/2000 regulates insolvency proceedings.
Regulation (EC) No 1347/2000, better known as Brussels II Regulation, unified jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses. It was replaced in 2003 by Council Regulation (EC) No 2201/2003.
Regulation (EC) 1348/2000 set in force unified rules on service of judicial and extrajudicial documents. Among Member States, it replaces the Hague Service Convention.
Regulation (EC) No 44/2001 better known as Brussels I Regulation, replaced the Brussels Convention unifying jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Regulation (EC) No 1206/2001 set in force unified rules on cooperation in the taking of evidence, replacing the Hague Convention among Member States.
Regulation (EC) No 1896/2006 created a European order for payment procedure facilitating cross-border recovery of uncontested claims.
Regulation (EC) No 861/2007 governs small claims procedure.
Regulation (EC) No 664/2009 unified jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
The goal of unifying the law of international civil procedure is not yet finished. Future developments will bring some refinement of existing regulations and possibly cover more topics. However, within only a few years most major areas of the law of international civil procedure were unified.
Unification of private international law by means of regulations only started in 2009, covering only two, albeit important, areas.
Regulation (EC) No. 864/2007 of the European Parliament and the Council on the law applicable to non-contractual obligations (Rome II Regulation) entered into force.
Regulation (EC) 593/2008 of the European Parliament and the Council on the law applicable to contractual obligations (Rome I-Regulation) entered into force.
Within only one year significant parts of the private international law relevant to international business transactions have been unified. Many regulations covering other areas of private international law will follow. Future developments include:
A Proposal for a Rome III Regulation would amend Regulation (EC) No 2201/2003 regarding jurisdiction and introducing rules concerning the applicable law in matrimonial matters.
A Green Paper on matrimonial property regimes exists in preparation of a Regulation on conflicts of laws in these matters, including the question of jurisdiction and mutual recognition.
A Regulation on the private international law on succession and wills is prepared as well. In 2005 the Commission issued a Green Paper on the private international law on succession and wills. In October 2009 the Commission presented a proposal for a Regulation on the private international law of succession and wills.
Two questions could be raised as to this fast-track unification: First, what is new or specific about this system, and second, who profits?
What is new or specific?
1. New and specific is the idea of comprehensive and systematic unification of the law concerning cross-border relationships at large. The activity of the last decade goes far beyond piecemeal unification. It is transforming the European Union into a homogeneous area of law.
2. Not new but specific is a strong tendency towards preferential treatment of the presumably weaker party. Such parties, notably consumers, employees, and insured persons, get easier access to the courts by jurisdiction in their country of habitual residence. Choice of law clauses are restricted and the applicable law in contractual relationships is the law of the country of their habitual residence.
3. Not new but again specific is the unlimited and unconditional freedom of choice of law in international business to business transactions. Governmental interests, through mandatory provisions and public policy restrictions, are only considered within the applicable law.
4. The tension between predictability and legal certainty on the one hand and fact-specific individual justice on the other is clearly decided in favor of the former approach. Only as a last resort, where there is a manifestly closer connection to a different country, will the applicable law deviate from pre-fixed rules.
What are the advantages of new unified EU private international law? Who profits?
First, the parties profit from this new set of rules on private international law. Uniformity will make their legal relationships easier and more efficient. And predictability will make their legal relationships safer.
Second, for the same reasons as the parties, the courts will profit too. They may lose some power, but they will more easily and efficiently determine the applicable law without detailed investigations.
Third, both domestic and foreign lawyers may profit from having easier access to uniform private international law. This is true for litigation lawyers and lawyers advising clients. Although some of us, including I, might adhere to the wicked idea that law is best when it is complicated because otherwise nobody would need us, I strongly believe that private international law is not the area that should be complicated. Uniform and clear cut PIL rules will help us focus on the substantive part of the law that, in the end, is the only important part of our work.
Finally, lawmakers worldwide may profit, though not necessarily by copying what has been achieved within the EU. Instead, they may consider these developments when evaluating modernization of their own PIL.
Volker Behr is Professor Emeritus of the Faculty of Law at the University of Augsburg in Germany. He was a Visiting Professor at the Universities of Baton Rouge (LSU), Chapel Hill (UNC) and Pittsburgh and Washington (GWU) as well as at Universities in France, the Peoples' Republic of China, Russia and Turkey.
Suggested citation: Volker Behr, Unifying International Civil Procedure and Private International Law in the European Union, JURIST - Forum,
Feb. 26, 2011, http://jurist.org/forum/2011/02/unifying-international-civil-procedure-and-private-international-law-in-the-european-union.php.