Europeanization and Unification of Private International Law

   

   Lenka Červenková

   Faculty of Law, Masaryk University, International and European Law Department

   

   Vladimír Týč

   

   

   Key words

   Europeanization, European private international law (conflict of laws), unification of private
   international and substantive law, private and inter-state unification groups

   

   

   Resume

   With the growth of private transactions and migration of the EU citizens, the original
   economic organization has been tending to more social and political one. Administrative rules
   and measures have no longer been sufficient for regulation of private contracts, legitimacy
   of ownership and proprietary relations, family and marital issues, inheritance as well
   as resolution of disputes arising out of these legal relations. Private legal transactions
   have become a stimulus to the integration and accomplishment of the Four Freedoms – the free
   movement of goods, persons, services and capital. This onward process of integration has
   heightened the exigency of unified norms in the European area.

   Recently, the common European legal tradition as a basis for unification of law has been
   revealed by numerous comparative legal researches. There are two ways of unification. First,
   the international treaties and conventions still personify the traditional means of the
   conflict of laws (so called hard law). They are concluded on an inter-state level, usually
   under the patronage of an international organization.

   Second, as an antipole or an alternative to the traditional way of the international treaties
   we can find non-binding private codifications of general legal principles and model laws,
   generally called lex mercatoria (soft law). Although these private codes and principles are
   not obligatory, their formulation, comparison, exchange of opinions and cognition of other
   legal institutes might serve as a motion to self-reflection and subsequently to more effective
   solutions. They form a modern stream of the unification of law.

   However, disadvantages of both of them – on one hand, rigidity and prolixness of ratification
   procedure, and only recommendatory nature on the other – have led to searching for a solution
   per medias vias. Such a solution might be presented by unified conflict-of-law rules, either
   in a form of an international treaty (lengthy procedure), or recently rather in the form of
   the EC measure. As the EC secondary law assures the unified application of the law in the
   whole European area of justice, it leaves minimal space for the application of dissimilar
   national legal orders and the result of a case should be the same irrespective of a forum.

   If there is a time in the future for a modern version of Ius Commune, a body of unified
   European substantive law, so far we have to be appreciative of the means of choosing the most
   proper applicable law, avoiding the crumbled national legal regulations.

   

   

   

   

   

   

   

   

   

   

   

   

   

   

   

   Contact – email: lenka.cervenkova@gmail.com