Imposed Protection in European Private International Law: From Value Neutralism Towards Community Protectionism
OPGELEGDE BESCHERMING' IN HET BEDRIJFSRECHT, pp. 5-32, F.G.M. Smeele & M.A. Verbrugh, eds., BJu 2010
20 Pages Posted: 28 Jan 2011 Last revised: 18 Oct 2014
Date Written: August 1, 2010
Abstract
This contribution deals with the role of imposed protection in Private International Law (PIL), and focuses on modern European PIL. It examines in the cases of imposed protection, and the rationale, methodology, legal developments and explanatory factors of imposed protection. It is concluded that the establishment of PIL rules at the EU level has given a new dimension to the idea of protection. Imposed protection is mainly achieved by limiting party autonomy (choice of law and choice of forum) in favor of mandatory protective rules of substantive law, particularly in the area of consumer law, employment law and insurance law. However, protection of weaker parties is also achieved outside the scope of the PIL regulations. Other legislative instruments, particularly the various consumer directives, contain mandatory provisions that take priority over the law chosen by the parties. The European Court of Justice plays an important role in this regard. Through interpretation of Community law, the Court has set additional limits on free choice of law and choice of forum. A striking example is the Ingmar v. Eaton case, in which the Court held that certain provisions of the Commercial Agents Directive should be applied irrespective of a choice for the law of a non-member state. The Court seems to tip the scales in favor of the protection of the 'weaker' party and Community interests and this ruling could be considered as too intrusive upon party autonomy recognized by conflict of law rules.
Note: Downloadable document is in Dutch.
Keywords: private international law, imposed protection, protection weaker parties
JEL Classification: K12, K39
Suggested Citation: Suggested Citation