Published online by Cambridge University Press: 30 March 2019
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.