Michaels & Jansen on 'Private Law Beyond the State'

Ralf Michaels (Duke) and Nils Jansen (Dusseldorf) have posted Private Law Beyond the State? Europeanization, Globalization, Privatization on SSRN (Duke Law School Research Paper No. 137, American Journal of Comparative Law, Vol. 54, No. 4, 2006). This is the abstract:

Although the changing relation between private law and the state has become the subject of many debates, these debates are often unsatisfactory. Concepts like 'law', 'private law', and 'globalization' have unclear and shifting meanings; discussions are confined to specific questions and do not connect with similar discussions taking place elsewhere. In order to initiate the necessary broader approach, this article brings together the pertinent themes and aspects from various debates. It proposes a conceptual clarification of key notions in the debate - private law, state, Europeanization, globalization, and privatization - that should be of use beyond the immediate purposes of the rest of the article. And it suggests how one should analyze and categorize both the problems the modern developments create and the solutions that these problems might call for. It does not attempt to analyze which solution is the best one. But in unveiling common structures, both within and between the various debates, the article should help significantly in providing the further discussion of these solutions with a more rational framework.

Open Letter French Private International Law Scholars on European Intrusion

Coulisses de Bruxelles, Jean Quatremer's weblog for the French journal Libération, has this post on an open letter from French academics to President Jacques Chirac on - what they see as - the illegitimacy of the European Union's activities in the field of private international law. Some 60 leading jurists have signed the letter which closes with the statement that "they will not be able for long to find the strength to dishonour themselves, in their writing as in their teaching, by pretending to treat as law that which evidently is no such thing".

The professors write (my translation):

"In a democracy organised on the basis of the principles of the rule of law, a legal provision is legitimate only if emanating from an institution that has the authority to prescribe it. (…) Nevertheless, and despite ever louder objections from a growing number of leading jurists in Europe, the Community Institutions are relentless in taking liberties with this fundamental precept. Now, with the proposal for a Regulation on the law applicable to contractual obligations (Rome-I), they seem resolved to ignore this notion definitively from now on".

The professors' principal cause for concern seems to be their fear that the new Regulation - in contrast to the existing 1980 Convention - will offer too little scope for the application of protective mandatory rules of the forum (cf. art. 7 of the Convention). This, the professors suggest, is an element of the Commission's grand plan to get rid of the great majority of mandatory rules in contract law generally (for, they argue, if cross-border contracts are so liberated, purely internal contracts cannot stay behind). This aproach "constitutes a grave attack on democracy as it robs national legislatures of all power".

A number of academics, including Paul Lagarde, Hélène Gaudemet-Tallon and Catherine Kessedjian, have written a counter-letter in which they decry "the dramatic, even apocalyptic, and therefore totally disproportionate tone" of the original letter. While emphasizing that the Commission proposal may be criticised on numerous grounds, these academics also take issue with the original writers' main substantive argument. Article 8 of the Proposal, they argue, specifically allows for the application of forum mandatory rules; the 1980 Convention system, therefore, largely stays in place.

What is fascinating to note is that while the original objectors frame their attack in democracy/rule of law/subsidiarity terms, closer reading of their letter makes it very clear that it is not so much EC 'overreaching' (in private international law matters) as such that they condemn, but the specific 'ultra-liberal', 'anti-social' content of the Rome-I proposal. (It is telling that article 65 EC - the basis for EC power in this area - is only referred to at the very end of the letter!). The professors' letter takes us right back to the (specifically French?) preoccupation with 'social dumping' in Europe.

Many thanks to Christophe Hillion for the tip! The Coulisses de Bruxelles blog has great stuff, and I'll definitely add a link in the sidebar.