Presentation "The Instrumentalisation of Private International Law. A Regulatory Role for Private International Law!? Private International Law and 'Social Justice'" (Presentation Max Planck Institute Hamburg September 2019; presented previously - February 2019 - at Max Planck Institute Luxembourg)

1. The Instrumentalisation
of Private International Law
Veerle Van Den Eeckhout

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• PIL: maverick, abstract, esoteric discipline!?
(mainly when about rules applicable law)
• But: “hot topics“ in discussions about globalisation:
PIL often interwoven, even important role
E.g.
• Within Europe: Labour migration/labour exploitation
• Global setting: Corporate Social Responsibility
• Migration (in broad sense, e.g. also social security claims, based on family
relationships)
PIL: maverick, abstract, esoteric discipline!?

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• Tendencies to model
• (not uncommon to model law!?)
• But: paradigm European PIL: “neutral“
• Is still paradigm,
although modern tendencies
And although recently “Europeanisation“ of PIL
Europeanisation = explicit form of Instrumentalisation of PIL!?
J. Meeusen, “Instrumentalisation of private international law in the European
Union: towards a European conflicts revolution?”, European journal of migration
and law 2007, p. 287-305
Role PIL ignored and unexplored/“discovered”
When Role discovered, acknowledged: possible tendencies to “model” PIL,
from perspective of policy objectives

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Muir-Watt, Paris “Pilagg“ programme
(“Private International Law as Global Governance“):
called upon PIL to abandon the “conceit“ of neutrality and “harness its tools to the
protection of the planetary commons.“
(Robert Wai in the area of international economic law: the question is not if PIL has
a role to play, but which role)
Europeanisation: left (more) openly old paradigm
Calls to go “further”, “broader” (in instrumentalisation of PIL/assigning a
regulatory function to PIL/…):

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• Muir-Watt 2011:
• “Despite the contemporary turn to law within the global governance debate, private international law
remains remarkably silent before the increasingly unequal distribution of wealth and power in the
world. By leaving such matters to its public international counterpart, it leaves largely untended the
private causes of crisis and injustice affecting such areas as financial markets, levels of environmental
pollution, the status of sovereign debt, the confiscation of natural resources, the use and misuse of
development aid, the plight of migrating populations, and many more. (…) it does mean that private
international law as the constitution of private transnational governance needs to abandon the
conceit of political neutrality – to the extent that neutrality is understood as an apology or a screen
that prevents it from dealing head-on with the global expression of non-state power-, and harness its
tools to the protection of the planetary commons”
Thus: should PIL “do its bit” (/at least not be complicit to injustice?)
Pilagg (Private International Law as Global Governance), Paris, Sciences Po
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Changed/changing paradigm? (not “neutral“ anymore – openly
instrumentalised. New phase in any case in the sense that now openly
questioned)
Regulatory function for PIL??
• Topic of international labour law and CSR could serve as case-studies if one
were to analyse PIL from its regulatory function (and examine its current/potential
role)
Tools of governance in PIL? PIL itself tool of governance??
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• In European setting: issues lack of protection mobile workers, “social dumping“ …
• PIL partly at the basis of “the problem“!? (especially in cases of Posting?)
• See article 8 Rome I Regulation: creates possibility/“allows“ working in a country
under lower conditions
(Individual employment contracts, rule of applicable law art. 8:
1. An individual employment contract shall be governed by the law chosen by the parties in accordance with Article 3. Such a choice of law may not,
however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the
law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this Article.
2. To the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law
of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. The country where the work is
habitually carried out shall not be deemed to have changed if he is temporarily employed in another country.
3. Where the law applicable cannot be determined pursuant to paragraph 2, the contract shall be governed by the law of the country where the place of
business through which the employee was engaged is situated.
4. Where it appears from the circumstances as a whole that the contract is more closely connected with a country other than that indicated in paragraphs 2
or 3, the law of that other country shall apply.)
International Labour Law, PIL-aspects

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• Thus: PIL at the bottom of the problem, evil-doer low protection of
employees, social dumping!?
(especially in cases of Posting of employees? “Freedom of service“)
• But PIL can also “help“, e.g.
particular application rule applicable law,
rules of immediate application (overriding mandatory rules) …
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Recently
- Case CJEU Noguiera etc. (“Ryanair“), 14 September 2017, C-168/16
and C-169/16
(although purely about rules of international jurisdiction: about Article 19 (2) a Brussels
Regulation, concept “the place where the employee habitually carries out his work“)
Court, nr. 62: “That circumstantial method makes it possible not only to reflect
the true nature of legal relationships, in that it must take into account of all the
factors which characterise the activity of the employee (…), but also to
“prevent a concept such as that of “place where, or from which, the employee
habitually performs his work“ from being exploited or contributing to the
achievement of circumvention strategies“
Some papers/presentations discussing this case: “PIL = “antidote“ against
liberalisation“
- cfr. (presented in same sense): recent amendment of the Posting
Directive
PIL: tool of governance, regulatory function??
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Regulatory function EU - Protecting weak parties (and human rights): risks
and possibilities. “Double face“
Thus: Europe (EU and CJEU): two faces as a central regulator
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• Human rights violations - torts
• Hypothesis: civil proceedings in Europe against European mother companies
and/or non-European daughter company. Non-European victims (plaintiffs),
damage outside Europe
• Said: should be “access to justice” for victims, but many hurdles
• (European rules of) PIL (another) legal hurdle for victims/facilitating role
• PIL hurdle/facilitates? Rules of international jurisdiction/rules of applicable
law
EU as central regulator in a global context
CSR worldwide: partly covered by European rules PIL
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In proceedings in Europe against European mother/non-European
daughter
against European mother:
no forum non conveniens.
Anchor for proceedings against daughter!?
but … “abuse of rights”, “good arguable case” …
Recent and future evolutions!?
PIL as a “hinge”: opens door/not.
Jurisdiction issues:
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• European Rules of Applicable law, when proceeding in Europe: Article 4 (1) Rome
II Regulation: “the law of the country in which the damage occurs” (lex loci damni)
= basic rule
• Thus: PIL “evil-doer”, at the bottom of the problem?
(Jessurun D’Oliveira 1997: “There are polluters who intentionally set up the locus
damni abroad. In this respect one can think of the many nuclear power stations
situated along borders, but also of situations like Bhopal (…) whereby dangerous
production processes are located in cheap countries, countries in which not only
labour, but also lives are cheap.”
PIL another instrument of power in the hands of the strong party?
Cfr. Applicable law
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• However, see e.g. (just straws/real possibilities?):
* specific rule of applicable law for “environmental damage” – article 7
Rome II
Art 7 (environmental damage): unilateral choice of, for the victim (can
choose for “the law of the country in which the event giving rise to the
damage occurred”)
How interpret this? Broaden this rule??
* Article 16 Rome II: (possibility) “overriding mandatory rules”
Assure this way that national legislation e.g. about “duty of care” will be
applicable?
Again: “double face” Europe as a central regulator?
Basic rule but …
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• But, possible issues:
• Goals (European PIL)? “social justice”!? How define, what is (legitimate) goal …?
Doctrine, already: “environmental social justice” – = at any rate legitimate goal?
(although also already here: ““Mutilation” of PIL”)
– besides this specific goal?
(Hans van Loon 2016: “PIL faces … challenge in light of globalization … to
protect weaker parties and vital public interests, including common goods”)
“protection weak parties”?
= who? Also e.g. tort victim of multinational?
Attention protection weak parties in PIL: see e.g. case Schlecker CJEU
So: PIL as a tool in the fight against environment pollution – as a tool to
guarantee labour protection …
PIL and “social justice” !? Role PIL in guaranteeing/achieving “social justice”?
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Attention e.g. Experience, evolution “migration” (in broad sense: including
e.g. social security)
with Europeanisation PIL: openly “in function” mobility within Europe;
Already before: migration, national practices using PIL as a tool for
restrictive migration policy (PIL often building-block, hinge-function. Rather
hidden practices - PIL as “Path of least resistance” - now!?)
intracommunatarian versus not-intracommunatarian, with blurred lines –
double track?
Cfr. More in general Impact or not of fundamental freedoms e.g. freedom of
movement/not; Cfr. Freedom of service/not … (image Fieke van Overbeeke:
PIL as a chameleon, changing in “colour” depending on, i.a., the impact of
fundamental freedoms)
Other points of attention
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Thus: “instrumentalisation” of PIL: (just) continue to study case by case?
Depending on characteristics etc. of each case/context etc.?
(Possibility, after studying all of them, that the general conclusion might be that a
distinction should be made based on the characteristics of each case
study/theme/setting etc.)
At same time: underlying questions on (change of) paradigm in PIL, on
“neutrality” of PIL
issues about essence of PIL itself
and about the interaction of PIL with other branches of law – and the policy
objectives in those areas.
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= about “instrumentalisation”/”regulatory function” of PIL/change of paradigm –
issue of “neutrality” now openly addressed -,
illustrated with some examples of case-studies,
which could give a “glimpse” of current/potential role of PIL in discussions about
globalization
= some underlying issues, questions (and points of attention)
When (continuing) study these and other “case-studies”.
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