European integration, legal diversity and the conflict of laws

The Making of European Private Law: Regulation and Governance Design

“…Whereas pluralism tends to emerge as a foundational value in the complex, multilevel structure that Europe represents, the conflict of laws may appear as a convincing alternative to centralised decision-making in an integrated market (see Muir Watt 2005). In this respect, it may even constitute a distinctive feature of European governance 14 .…”

“…Where distortions in competition appear between national and out-of-state firms due to the existence of an unlevelled playing field, conflict of law rules are devised to alleviate the consequences of differing legal situations and secure regulatory diversity. This is the case concerning cross-border pollution and the posting of workers (see for further details Muir Watt 2005). The proposed Rome II Regulation on the law applicable to extra-contractual obligations 21 grants the victim of cross-border pollution the option between the law of the place of the harm and that of the polluting activity.…”

“…Although this solution has been largely accepted in the field of goods, it creates more difficulties in the field of services in which the scope of mutual recognition tends to be far-reaching, thereby undermining the very functioning of private international law. However, it may well be that the relationship between mutual recognition and private international law should be refined (Muir Watt 2005). It is thus important to fully grasp the mutual recognition rationale.…”

“…The latter line of cases shows that it is not enough to extend the scope of mutual recognition for regulatory competition to take place. One must carefully study the different ways in which regulatory competition operates, as boundaries have to be established at some points In this respect, a distinction should be drawn between product rules for which consumers vote with their purse and marketing rules for which consumers still vote with their feet (see Snell 2002, 46ff andMuir Watt 2005). In the second hypothesis it is thus necessary to safeguard the integrity of the host state's policy.…”