Lutzi on the Scope of DSA and DMA from a Conflict of Laws Perspective

Tobias Lutzi (Junior Professor for Private Law at the University of Augsburg) made available on SSRN a pre-print short contribution that is forthcoming in Dalloz IP/IT entitled The Scope of the Digital Services Act and Digital Markets Act: Thoughts on the Conflict of Laws.

The abstract reads as follows:

The DSA and the DMA both define their territorial scope of application through a unilateral conflicts rule following a marketplace approach; but they remain silent on any other question of private international law. This paper will explain why this provides an unsatisfactory answer to the many problems arising out of the inevitable overlaps of national laws in the digital space, including in areas that will soon be governed by the two new regulations. While this approach appears to be part of a wider trend to delegate any question of private international law other than the definition of an instrument’s territorial scope to the general instruments that exist in that area, this paper will argue that a true ‘Digital Single Market’ can only be achieved by addressing the specific challenges it raises for private international law through multilateral conflicts rules.

The points this contribution raises are valuable as they bring to the forefront some of the challenges digital technology is posing for users and the EU internal market when dealing with cross-border aspects. As the DSA and DMA do not contain dedicated private international law rules addressing jurisdiction and matters of applicable law, the challenge remains with private international law instruments. Hopefully, contributions such as these can play a valuable role in raising awareness as to the importance of dedicated rules and mechanisms to be added in the process of review of the EU private international law instruments. In this way a ‘missed opportunity’ may turn into a broader gain for the Digital Single Market from a Private International Law perspective.