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 6: The Law Applicable to Violations of the Environment – Regulatory Strategies

Oliveira Boskovic

Subjects: law - academic, european law


Oliveira Boskovic Can the conflict of laws rule in the field of environmental liability fulfil a regulatory function? The question is surprising for a continental lawyer. Although the growing importance of the regulatory function of private law, largely based on the decline of the classical distinction between private and public law has been demonstrated,1 the problem remains largely unexplored in private international law.2 The idea of regulation seems absent in the traditional reasoning of European private international law systems. When designing a conflict of laws rule in the European tradition, private law considerations are generally preferred to state interests and goals traditionally qualified as belonging to public law.3 Even when this is not the case, policies which are taken into account are generally municipal policies of the law of the forum. For several reasons, the law of environmental liability seems particularly suitable to show that this perspective is not the only possible one. First of all because many environmental disasters have an international dimension. Secondly, because a truly transnational or at least European policy exists in this field. And last but not least because harmonization of substantive law is still limited,4 leav- 1 See H. Muir Watt (2004) ‘Les aspects économiques du droit international privé’, RCADI t 307, p. 268. 2 See however, R. Wai (2002) ‘Transnational liftoff and juridical touchdown: the regulatory function of private international law in the era of globalisation’, 40 Col J Trans Law, p. 209. 3 This is true at least since...

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information