The Regulatory Function of European Private Law

The Regulatory Function of European Private Law

Edited by Fabrizio Cafaggi and Horatia Muir Watt

In the context of the current debate on the desirability and process of forming European private law (EPL), this book considers one fundamental question addressing its descriptive and normative dimension: does and should EPL pursue regulatory objectives beyond market integration?

Chapter 3: The Regulatory Function of Choice of Law Rules Applying to Contracts for Services in the European Union

Sandrine Clavel

Subjects: law - academic, european law


Sandrine Clavel INTRODUCTION Reconsidering the paradigm of the neutrality of international private law,1 already challenged by the increasing development of internationally mandatory rules through which States intend to impose public policy concerns in the resolution of private disputes, recent scholarship has acknowledged that choice of law rules may endorse a regulatory function.2 The assumption is that the designation of the law applicable to the resolution of international private litigation might not only be meant to offer private parties an outcome to their dispute, but also to fulfil objectives of a public nature. For several decades now, choice of law rules have been traducing legislators’ concerns for the implementation of substantive policies in private law.3 However, when it 1 Built on Savigny’s teachings, the neutrality of international private law has been pictured as the foundation of the conflict of laws in Europe during most of the twentieth century (Mayer P. and Heuzé V. (2004) Droit international privé, Paris; Montchrestien, n°68); However, for a survey of the ‘balance movement’ between public and private concerns in international private law (IPL), see: Muir Watt H. ‘Droit public et droit privé dans les rapports internationaux (vers la publicisation des conflits de lois ?)’ (1997) 41 Arch. Phil. Droit, pp. 207–214. 2 Muir Watt H. ‘Globalisation des marchés et économie politique du droit international privé’, (2003) 47 Arch. Phil. Droit, pp. 243–262; Wai R. ‘Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of...

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