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

See all articles by Laura M. van Bochove

Laura M. van Bochove

Erasmus School of Law

Xandra E. Kramer

Utrecht University - Faculty of Law; Erasmus University Rotterdam (EUR) - Erasmus School of Law

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

van Bochove, Laura M. and Kramer, Xandra E. and Kramer, Xandra E., Imposed Protection in European Private International Law: From Value Neutralism Towards Community Protectionism (August 1, 2010). OPGELEGDE BESCHERMING' IN HET BEDRIJFSRECHT, pp. 5-32, F.G.M. Smeele & M.A. Verbrugh, eds., BJu 2010, Available at SSRN: https://ssrn.com/abstract=1748433

Laura M. Van Bochove

Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands

Xandra E. Kramer (Contact Author)

Utrecht University - Faculty of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

Erasmus University Rotterdam (EUR) - Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands

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