THE ECLIPSE OF PRIVATE INTERNATIONAL LAW PRINCIPLE? THE JUDICIAL PROCESS, INTERPRETATION AND THE DOMINANCE OF LEGISLATION IN THE MODERN ERA

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Abstract:

This essay argues that the conceptual unity that subsists in the private international laws of many nations owes much to the comparativist approach of judges and jurists in the past. Thus by being voraciously comparativist judges could create a scientific private international law in which uniformity or harmony of decision could in large measure be achieved. That search for uniformity of decision remains the great, albeit unattainable, goal of private international law. In UK private international law is today dominated by legislation, either national or European. A narrowing common law area is likely to survive for some time and the method of the virtuous comparativist should flourish there – and, if not there, in the common law “beyond the seas”. Moreover, a growing number of Conventions on Private International Law incorporate an obligation to interpret uniformly after taking into account the judicial decisions of the other Contracting States. An alternative approach is to impose a uniform interpretation on the Convention (as it the case with the Brussels Convention, being subject to interpretation by the ECJ). But here there is no virtuous comparison. With the changes wrought by the Treaty of Amsterdam much more uniformity of the relevant rules and interpretation across the EU is promised. And much has already been achieved (Brussels I & II regulations). However, there are dangers with these ambitious European developments. Under the ERTA doctrine the right to adopt and implement Hague or other Conventions with non-member states is threatened.

Document Type: Research Article

Publication date: April 1, 2005

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