European Private International Law: Embracing New Horizons or Mourning the Past?

Andrew Dickinson

Consultant, Clifford Chance LLP; Visiting Fellow in Private International Law, BIICL

JPrivIntL Vol 1 Issue 2 (October 2005)

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Abstract

The EC has specific competence to legislate in the field of private international law. Under Art 65(b) of the EC Treaty (introduced in 1997 by the Treaty of Amsterdam), measures in the field of judicial co-operation in civil matters to be taken "in so far as necessary for the proper functioning of the internal market" include "promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws". In exercising this competence, the EC must also have regard to the principles of subsidiarity, proportionality and legal certainty. The legitimacy of EU measures in this field has recently come under close scrutiny in connection with the proposals for Regulations laying down uniform choice of law rules for contractual ("Rome I") and non-contractual ("Rome II") obligations. This article critically examines the nature and scope of EU competence in this field, with particular regard to the "Rome II" proposal, and considers its possible implications for the structure and study of private international law in England and Wales.

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