Books Developments in PIL Scholarship

Legendre on Fundamental Rights and Private International Law

Droits fondamentaux et droit international privé ; réflexion en matière personnelle et familialeRebecca Legendre (University of Paris 2 Panthéon-Assas) has just published a monograph on fundamental rights and private international Law based on her doctoral thesis: Droits fondamentaux et droit international privé – Réflexion en matière personnelle et familiale, Dalloz, 2020.

The author has provided the following abstract in English:

Fundamental rights put private international law to the test. First, the context in which private international law operates has evolved. Fundamental rights have created a better, closer, intertwining of the separate state legal orders and have achieved a higher protection for  the persons as they experience international mobility. If this evolution does not threaten, as such, the existence of private international law, it must be acknowledged that fundamental rights modify its analysis. Whereas the conflicts between legal orders are transformed into conflicts between values, the hierarchy of interests protected by private international law is replaced by a balancing of these interests. The solutions of private international law are thus disrupted by the enforcement of fundamental rights through litigation.  Proportionality is at the source of this disruption. Being a case by case technique of enforcement of fundamental rights, the influence of the proportionality test on private international is uneven. If the proportionality test is found to be overall indifferent to the methods of private international law, its main impact is on the solutions of PIL. The European courts are indeed prone to favour the continuity in the legal situations of the persons, over the defence of the internal cohesion of the state legal orders. As a consequence, private international law is invited to reach liberal solutions. The enforcement of fundamental rights through litigation must hence be clarified so as to maintain a measure of authority and predictability of the solutions of the rules of conflict of laws, international jurisdiction and recognition of foreign judgements. It is, on the one hand,  by methodologically dissociating the enforcement of fundamental rights from the public policy exception and, on the other hand, through an amendment to the proportionality test, that the balance of private international may hopefully be restored.

More details are available here.

Marion is law professor at Artois University (France)

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