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Observation of the ion source generated background has been an area of focus during our routine analytical work. It is noted that the results of very-low-ratio samples are dependent upon the particular procedures for measurement using the present-day Cs+ sputter ion sources. When measured without excessive Cs+ fluxes and without interleafing with other higher-ratio samples and references, the accelerator mass spectrometry (AMS) sensitivity can be somewhat improved. In some cases, it appears possible to assess old radiocarbon (14C) samples to beyond the long-standing 60 kyr limit. A number of observational studies are made for the sole purpose of minimizing the final contamination to the rare isotopes that is generated within the ion source.
Some groundwork is necessary before one can delve into conceptual, legal, and policy questions surrounding general issues of private international law in the context of the EU.
The first chapter in this part addresses questions of method. Why even approach the present topic from a comparative perspective? What kind of perspective is this? How does it deal with the various difficulties of taking into account the law of 28 states?
The next chapter then provides an overview of the legislative and scholarly material upon which Part II in particular relies. Short country reports summarise the situation of private international law in the different member states. Does domestic private international law — or at least its treatment by the cognoscenti – already reflect a distinction between ‘general’ and ‘special’ issues? If so, to what extent? Finally, with regard to EU private international law itself: is it possible to observe in it at least incunabula of any such systematisation?
This book has explored the concept of general issues and rules of private international law in the EU. It adopted a (not necessarily traditional) comparative perspective (Chapter 1), taking into account the domestic law of all member states, as well as EU law as it stands in Rome I, Rome II, Rome III, the Succession Regulation, the M-Property Regulation, and the RP-Property Regulation. The main findings can be summarised as follows.
DOMESTIC PRIVATE INTERNATIONAL LAW AND GENERAL ISSUES DE LEGA LATA
General rules of private international law in the EU: nihil sub sole novum. A majority of member states have a private international law code, be it part of a civil code, an act combining rules on the applicable law with rules on jurisdiction and more, or a stand-alone legal instrument. Every single one of these codes contains a set of provisions on issues commonly considered “general”. These provisions oft en even constitute a formally separate chapter whose title, in turn, oft en officially designates them as “general”. In any case, these provisions always form an identifiable cluster. The size of these sets varies, however. Some consist of only a handful of provisions, whereas the number of provisions in others is in the double digits.
Moreover, particularly in the common law and French tradition without private international law codes, scholars have separated entire classes of issues from their discussion of individual conflicts rules. Empirically, the respective issues and the issues covered by general provisions in other member states ‘ codes overlap to a great degree. In fact, the very designation “general” surfaces here and there in scholarly works on private international law, albeit in the vast majority of instances without any conceptual explanation (Chapter 2, section 2.1.).
EUROPEAN UNION PRIVATE INTERNATIONAL LAW AND GENERAL ISSUES DE LEGE LATA
Six regulations on separate areas of law make up the bulk of EU private international law. While they do isolate entire chapters from their sets of particular conflicts provisions, they do so neither uniformly nor according to any obvious pattern. Still, several of the provisions contained in these chapters correspond to issues with which domestic private international law deals by using provisions designated as “general ”.
Descriptive sections in comparative studies can easily become tedious. Yet transparency dictates not making reference to the provisions of domestic and EU law only in piecemeal fashion later on, where the brunt of references is relegated to the“low rumble of the footnote”. I will therefore try to navigate Scylla and Charybdis by first giving a brief overview of the private international law of each member state and of the EU itself, so that later references do not point to a vacuum.
Incidentally: the decision for not having fewer references, and thus slimmer footnotes, in the first place is based on the idea that not all sources compiled for this book will be available everywhere. More references for the same point increase the probability that every reader has access to at least some of the sources relied upon for my observations.
DOMESTIC PRIVATE INTERNATIONAL LAW
SCOPE OF THE OVERVIEW
In accordance with the overall approach of this book, the scope does not cover the legal, constitutional, or political order of the member states as a whole. Rather, it focuses on the following issues:
– Is there a legislative act, be it part of another act or stand-alone, dealing with different aspects of conflict of laws? In short, and shunning the many possible connotations of the term, is there a“code” of private international law?
– If so, does that code contain a separate set of provisions which it itself expressly deems “general”? (This formal perspective entails that the meaning of “general” can remain open for the time being.) What issues do the provisions in such a section deal with?
– If there is no code of private international law, are there issues which have nevertheless been identified as “general” or at least are dealt with separately from other sets of issues (and by whom/with what authority)?
Note that, in the interest of readability, I will use inverted commas as sparingly as possible outside of direct quotations (of which there will be quite a few).
Not long ago, genuine European private international law consisted, beyond the Brussels Convention, of a few isolated choice-of-law provisions in specific EU instruments, in particular consumer directives. Since then, we have witnessed an astonishing growth in the number of instruments of European provenance, many of which directed at establishing the applicable law. EU private international law has moved from the margins to the centre. By now, it is a venerable field of its own.
While we do have European private international law, what we do not have is a comprehensive and systematically uniform approach to private international law on a European level. Different Regulations on private international law stand in sometimes unclear relation to each other. Moreover, general issues of private international law – doctrinal tools like characterisation, renvoi, and the public policy exception – are not regulated on a level that would transcend these individual instruments. Some tools, like the public policy exception, can be found in each of the Regulations. Other tools, like characterisation, exist in a form that is doctrinally different from that in domestic law, oft en as provisions concerning the scope of an instrument and the scope of the applicable law. And some tools, like the incidental question, find no regulation at all.
This lack of uniformity is the focus of this most welcome book. Felix M. Wilke, a young scholar from the University of Bayreuth in Germany, has focused on this topic before: he was prominently involved in a project established at a conference in 2012, and in a corresponding collection of essays published in 2013, which aimed at establishing the potential for a general part of European private international law. The project set out to produce a legislative instrument, cleverly named a “Rome 0 Regulation“, that could serve as a legislative general part that would both supplement and connect the existing private international law regulations. Both book and project were in German and brought together scholars from German-speaking universities. Now, Wilke addresses this question in a comprehensive fashion in English.
And he deserves our gratitude for this. This is a thoroughly researched work that is both comparative-empirical and prescriptive in nature, a study that both surveys existing law and makes proposals on the basis of its findings.
It is a truth universally acknowledged that a book with a broad title such as the present one must begin with a statement as to what it is not about. Assuming that the reader is at least equally interested in learning what it is about, the apologetic section (2) is preceded by a section offering a positive perspective on things to come (1). Together, these first two sections delineate the scope of the book. As this is not only a book with a broad title, but also a unilingual comparative analysis in the field of private international law, there is a particular need to address quite a number of terminological issues. They are the subject of the third section.
THE CONCEPT OF GENERAL ISSUES
It would not seem to be a stretch to posit that most persons with a legal education will associate the notion of establishing a “general part” of one area of law with German law and German legal scholarship. “The technique of creating a General [Part] is, in its perfection, a marvel of German legal theory.” Nothing epitomises the “German abstract approach to law” quite like the General Part of the German Civil Code, the BGB. But the idea is older and far from limited to substantive private law. Codifications of criminal law separated general from specific provisions even before the 19th century. Otto Mayer, who is considered the father of “general administrative law” (Allgemeines Verwaltungsrecht) in Germany, set forth his distinction of a “general part” and a “special part” of administrative law in 1895. Even the German Constitution has occasionally been called a “general part” (of German public law or even of all German law).
From a German perspective, thus, it is all but unnatural that the discourse concerning European Union (EU) private international law has relatively quickly turned to its general provisions, its general principles, its general theory, its general doctrines, and/or even expressly to its (potential) general part. Indeed, most contributions calling for a general part of EU private international law, or at least exploring the topic of general rules originate in Germany.
A second way to think about “general” issues and rules of private international law is to adopt a substantive perspective. The formal approach is all about quantitative relevance: issues occurring in more than one context. By contrast, the substantive approach is based on a qualitative criterion. It concerns issues considered so important, so fundamental, for private international law that they deserve special treatment. This would (also) be a reasonable explanation of why they are dealt with separately from individual conflicts issues and rules.
The use of the passive voice in the preceding two sentences poorly conceals one big problem with this approach: much of it depends on the who, on the person(s) considering something to be of special importance or not. One legislator or scholar might deem a certain topic to be particularly significant, while another might deem it entirely trite. Typically, there will be no legal reason proving one of them wrong, unless perhaps a legislator exceeds its constitutional boundaries. In other words, from a legal perspective, there is considerably less to say about substantively general issues as such than about formally general issues as such. It very much depends on policy. Substantively general provisions are not legally irrelevant, however. As they illustrate a legislator'Ss policy decisions, they can play an important part in the interpretation of individual conflicts provisions.
If a domestic legislator does not make a provision setting forth its policy, the only way to discern any fundamental private international law policy is through interpretation, possibly taking into account extrinsic sources, i.e. legislative history and/or explanatory memoranda. By contrast, the EU legislator has a device at its disposal to set forth its policy considerations internally, both expressly and as part of the respective legal instrument, yet separately from actual provisions: recitals. They deserve particular attention in the following. Indeed, several commentators concerned with the codification of EU private international law, or at least its general provisions, have already suggested relegating certain questions of principle to the recitals.
SUBSTANTIVE APPROACH, NOT SUBSTANTIVE RESULT
It would be a misunderstanding to think that the substantive approach necessarily pertains to substantive results being achieved.
Comparative law is a risky discipline. There is a danger of at least prima facie doubtful endeavours such as comparing New Zealand and German adoption laws, or Uzbek securities trading law with its Swiss counterpart. Then there are numerous, perhaps countless, pitfalls in the comparative process itself. In view of these issues, this chapter addresses three aspects. First, the reasonableness of approaching the present topic in a comparative way. Second, the extent to which this book follows the traditional notion of comparative law, the extent to which it does not, and why not. Third, the attempts that will be made in order to avoid some of the subject'Ss pitfalls and why falling into some of them – horribile dictu – would not cast doubts on the book as a whole.
Radbruch'Ss observation that “sciences which have to busy themselves with their own methodology usually are sick sciences” may or may not be true. If one emphasises the compulsory aspect (“have to”) in the sense that those sciences do little else, it is easier to agree with Radbruch than in general, where occupation with method and methodology is a constitutive element of the scientific nature of a discipline. Even though there are excellent examples of comparative private international law, i.e. the comparison of private international law rules, questions of comparative law are mostly (and mostly without making mention of it) discussed in relation to comparing substantive rules. Thus, it may be of some general interest to analyse features of comparative private international law here. In order to be understood as correctly as intersubjectively possible, some remarks as to methodological preconceptions are indispensable.“Some”, however, is to be taken literally; the debate on methods in comparative law has been getting out of hand, it would be impossible in this context to address anything but select questions.
COMPARATIVE PRIVATE INTERNATIONAL LAW IN THE EUROPEAN UNION
COMPARATIVE PRIVATE INTERNATIONAL LAW
The “intimate”, almost “symbiotic” relationship between private international law and comparative law has oft en been noted.
To ask whether the EU can legally implement any of the approaches discussed above mainly means to ask the questions of competence and procedure. This is not the place to give the nth overview of the development of EU private international law. The issue is simply: can the EU make general rules of private international law pursuant to the TEU and TFEU?
COMPETENCE IN THE AREA OF PRIVATE INTERNATIONAL LAW
There seems to be general agreement that Article 81(2)(c) TFEU, with its reference to “the rules applicable in the Member States concerning conflict of laws”, pertains to rules that determine the applicable law. As a measure adopted on the basis of this article is not required to be necessary for the proper functioning of the internal market anymore, it can also encompass civil matters (arguably) without relevance for the internal market, such as family law. This statement finds further support in Article 81(3) TFEU – and found it in Article 67 TEC – that sets forth special rules for the establishment of measures concerning family law. That a lack of unanimity in the Council would entail that an area of private international law in family matters remains for the member states to deal with, does not mean that the EU does not have the competence in that area as a matter of principle; it just means that the EU was not able to make use of it in a certain matter yet. In sum, the EU can tackle all areas of private international law as a subject matter.
COMPETENCE FOR UNIFIED PRIVATE INTERNATIONAL LAW
Some scholars called into question whether Article 65 TEC gave the EU the competence to make unified provisions of private international law. They mainly relied on the wording of said provision as it only pertained to “promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws”. As it is well known, EU legislative practice did not seem much concerned. It was not necessary, either, to read Article 65 TEC this narrowly.
Thus far, it has first been shown that domestic, as well as EU, private international law distinguishes between at least two classes of private international law rules, with one oft en expressly called ‘general’. This is not always done, however, in uniform fashion. It has then been demonstrated that, as a matter of theory, it is reasonable to approach the meaning of ‘general’ from a formal and a substantive perspective, and that, as a matter of checking the theory against existing law and its academic presentations, both approaches together take account of virtually everything designated or treated as ‘general’. As the future of European private international law clearly lies at the level of the EU, the final questions are whether the EU can and should make (formally and/or substantively) general provisions for a ll2 003 of its private international law.
‘Can’ implies the legal dimension (Chapter 5): does the EU have the competence to make general rules of this kind? Which legislative procedure is to be used? How would a respective instrument and the rest of EU private international law interact?
‘Should’ refers to the policy dimension (Chapter 6): does it make sense to create general provisions of EU private international law? What are the advantages and disadvantages of proceeding in this way? Is there any alternative scenario –and is it viable?
Accordingly, law and policy are the two standards by which the idea of general provisions of EU private international law will be examined in the following.
Private International Law (PIL) in Europe is marked by fragmentation and complexity. At EU level, thus far six separate regulations determine the applicable law in different fields of the internal market (e.g. contractual/non-contractual obligations, divorce, succession). While their scope and structure are similar, they do not offer a coherent picture of EU PIL. Moreover, the regulations do not address certain issues at all. To make matters even more complicated, national PIL rules of the Member States apply for areas not yet covered by EU PIL. This state of affairs has sparked a debate on whether a set of general rules or perhaps a special regulation (“Rome 0”) could help to reduce this complexity. But no common position, even on the scope of such a set of rules, has been reached yet.This book begins by taking a step back. It systematically and exhaustively analyses existing PIL rules and issues in EU and national legislation, covering all EU Member States in the process. It then demonstrates that the characteristics of PIL themselves imply a framework for “general issues” – independently from language, codification or underlying legal tradition. This is largely due to the common elements of PIL rules, i.e. subject matter, connecting factor, and governing law. Taking this further, the book concludes with possible implications for the EU from a law and policy perspective.Dr Felix M. Wilke is a senior assistant and university lecturer at the law and business school of the University of Bayreuth. He holds an LL.M. from the University of Michigan Law School which he attended as a Grotius Fellow. Before returning to the University of Bayreuth for his current position, he was a law clerk at the Hanseatic Higher Regional Court of Hamburg.
“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.