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.

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?

Whether or not a legislator should make general provisions for a given area of law is obviously not a question confined to private international law. The pros and cons of a general part of a civil code have been a topic of discussion “[e]ver since the heyday of Pandectism”. Pandectist textbooks following the structure introduced by Heise influenced the 1865 Saxon Civil Code, i.e. the “trial run” for the BGB, and then the BGB itself. But was it appropriate to transfer this structure of scholarly presentation and teaching, itself not free from critique, to legislation? Then again, criminal codes even before the 19th century had general parts, with the “technically exemplary” 1810 French Code pénal being a particularly influential model at the beginning of that century. Roughly two centuries later, the question of general provisions arises for EU private international law.

LEGISLATORS, SCHOLARS, TEACHERS: ANOTHER TRIPARTITE DISTINCTION

To begin with, it is worth emphasising that the following remarks only concern the legislator. The topic “general issues/rules” as such does not require this perspective. In particular, it can also be analysed in relation to scholars and teachers. These three dimensions must be set apart. At least as long as law is considered to be a systematic discipline – which is arguably (still) the European way of conceiving of law – the scholarly necessity of finding general patterns in the law and structuring it accordingly can hardly be questioned. This much is accepted even by those to whom a legislative general part in substantive private law is anathema. The often copious separate chapters on “general” or “preliminary” issues in books on private international law, even in member states without a respective code, demonstrate that this insight applies to private international law as well – and that it is anything but limited to the idea of law as “legal science”. On the other hand, it has also rarely been disputed that general statements about (substantive private) law are not exactly the ideal place to start when instructing novices in the law. When faced with generalities, their interest in the law will probably wane quickly.

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.

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.

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 ”.

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.

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.

The survey of the material in the preceding part has shown several parallels among the member states, as well as between the domestic and EU levels – not only as to the idea of dealing with certain issues of private international law separately from individual conflicts rules, but also as to the scope of these issues. In domestic law, they are even oft en designated as ‘general’. Only rarely, however, does a legislator or scholar give an explanation for proceeding in this way. When there is one, it is usually along the lines of the respective issues/rules being ‘technical’ and/or of relevance for the remainder of private international law.

Ordinarily, one can content oneself with such a short explanation. The distinction between ‘general’ and ‘special’ is a traditional device to structure all sorts of accounts, not just the law. In many aspects, it can (thus) be grasped intuitively and requires no further analysis. For present purposes, however, a closer look is necessary.

What is actually meant by ‘general’? What does ‘technical’ mean, and what kind of ‘relevance’ is at issue? To what extent do the resulting descriptions explain the scope of ‘general’ provisions in the (written) law and of sections on ‘general’ issues in scholarly works? If the answer to the last question is a (relatively) high percentage, the implication for the future of European (Union) private international law is twofold. First, there would be a model that could feasibly be used for all of EU private international law because it would make sense for all member states. Second, the model could direct the attention of domestic legislators, as well as that of the EU, to issues not yet on their respective agendas.

Accordingly, this part focuses on approaches to the term ‘general’. Borrowing from ideas first advanced in the context of the theory of legislation, it addresses whether and to what extent it makes sense to look at ‘general’ issues of private international law from a formal perspective (Chapter 3) and whether and to what extent it makes sense to look at them from a substantive perspective (Chapter 4). While these are not the only ways to understand ‘general’, they seem to be the most promising.