Edited by Fabrizio Cafaggi and Horatia Muir Watt
Chapter 6: The Law Applicable to Violations of the Environment – Regulatory Strategies
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...
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