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  • Print publication year: 2019
  • Online publication date: March 2019

Chapter 3 - The Formal Approach



“General” can be understood in a formal way. The generality of an issue or a rule in this formal sense means that it is relevant in more than one legal context. Relevance in more than one factual context would hardly suffice. What exactly constitutes a“legal context” depends upon each legal system and is also a question of perspective/level of abstraction. Thus, for example, a substantive rule on the formation of contracts is formally general because this issue arises with regard to more than one type of contract, be it a sales contract, a construction contract or a service contract. Yet it would still only be a rule about contracts and of no importance in tort law.

The same can be said for EU private international law. At EU level, for example, each of the Rome Regulations and the Succession Regulation can be seen as constituting one legal context. Formally general issues or rules would thus be issues or rules relevant for more than one EU private international law regulation. This is the level with which this chapter deals for the most part. But one can also move one level lower: there are issues or rules that are formally general within each EU private international law regulation because they are relevant for more than one of their conflict'Ss provisions, e.g. not only for consumer contracts but also for employment contracts, not only for torts but also for unjust enrichment. Symeonides has called this problem of shift ing frames of reference the “blurred line” between special and general rules. As long as the frame of reference is made explicit, however, one is able to say whether an issue exists in (or a rule applies to) only one context or more.

This chapter, then, is about issues arising for more than one rule – or, if there is already a solution for the issue in question intended to operate in more than one context, about rules that are the same for more than one conflicts rule.