Books Developments in PIL Scholarship

Is Private International Law Value-Neutral or Policy-Driven?

Cedric Hornung has published an inspiring book , titled Internationales Privatrecht zwischen Wertneutralität und Politik (Mohr Siebeck, 2021), about a fundamental tension underlying Private International Law.

On the one hand, the discipline is meant to be value-neutral, in the sense that it admonishes the judge to abstain from evaluating national legal systems before applying them. On the other hand, conflicts rules have become increasingly charged by politics in the last decades, as illustrated, e.g., by the special rules on the protection of consumers in Rome I and the environment in Rome II, or the discussions about the recognition of same-sex marriages or surrogate motherhood. Against this background, Hornung asks the – apparently rhetorical – question whether a private international law free from politisation is at all possible.

The book has been published in German. The author has kindly provided us with the following English summary:

The first main chapter seeks to provide terminological clarity on the meaning of “value-neutrality” and “politics” in the context of private international law. With the help of political concepts by essential theorists such as Aristoteles, Hannah Arendt and Jacques Rancière, the author concludes that two main elements characterise the modern understanding of this field of law: pluralism and internationalisation. When­ever a conflict-of-law rule itself or the underlying motivation reflects a unilateral or national perspective, the idea of an apolitical PIL is abandoned. Still, some instruments have been implemented in the European choice-of-law process despite their political background – the ordre public and the idea of overriding mandatory provisions are just two instances of such generally-accepted perforations. However, the author underlines that these political mechanisms need to respect certain boundaries within their politicisations so as to not completely impede the indented value-neutrality.

The second main part deals with the evolution of political and social incitements when it comes to determining the applicable law in past epochs. Starting with the antique ius gentium and moving on to cross-border legal practice in the Middle Ages, the author examines in which way territorial intentions in particular have played a central role for centuries. With regard to the late statutists, he illustrates that regional interests overlayed the conflict between municipal laws even in cases where universal rules had seemingly been established. Following, modern conceptions of PIL are presented: The author points out that, although often being named as the “father” of modern conflict of laws, Friedrich Carl von Savigny did not manage to globally exclude social, economic, and power-related reasons from his image of the “seat of the legal relation”. Then again, the “nationality rule” of his Italian counterpart Pasquale Stanislao Mancini should not be misinterpreted as purely nationalistic procedure – just like some of the approaches from the North American continent. From a German point of view, a depoliticization of the choice of law has only been realised in the PIL reforms of 1986 and 1999 where virtually no unilateral argument came into effect. On the contrary, the author closes the chapter with a glance at the Europeanisation of this field of law which quite regularly resurrects biased explanatory models.

Subsequent to the historical analysis, the view shifts towards recent developments: On the basis of the infamous Art. 10 of the Rome III Regulation and Art. 13 al. 3 of the German EGBGB (Introductory Act to the Civil Code), the author documents the current tendency to stigmatise some legal orders as per se irreconcilable with European ideals. By embodying this trend, these provisions deny a genuine value-neutrality and superimpose a classification ex ante. How social and protective measures can be incorporated into the conflict of laws without a fundamental breach with its principles is explained in matters of human rights: Thanks to their – at least theoretical – universality, they are suited as gateway for political concerns in the search for the applicable law. Particularly in international supply chains, PIL ought to defend these essential guarantees at an early stage of the legal treatment.