Choice-Of-Law Codification In Modern Europe: The Costs Of Multi-Level Law-Making

Abstract

INTRODUCTION|For U.S.-American scholars (and perhaps even legislators) who consider the codification of conflicts law and are interested in foreign models, it comes almost naturally to look to continental Europe. To be sure, in recent decades there has been a much wider, almost global, trend towards codifying choice-of-law rules. Yet, continental Europe remains the high citadel of codification and that is especially true for conflicts law: in the past 50 years, the region has seen more conflicts codifications than ever before, though some are more comprehensive than others. The result is an ever starker contrast with the United States: on this side of the Atlantic, conflicts codification is still very much the exception, in Europe it has clearly become the rule. |It is tempting, therefore, to regard continental Europe as some kind of conflicts codification paradise- a world where the pertinent rules are comprehensively unified, logically coordinated, and systematically organized. Unfortunately, the reality is much more complicated. There is currently no comprehensive European code on private international law. Instead, there is a growing multitude of particular codifications and, in combination, these codifications have turned European conflicts law as a whole into something of a mess. This is so, mainly for two reasons. First, codification has occurred on several distinct levels- national, international, and supra-national- and the coordination between these levels is often wanting. Second, especially at the level of the European Union, codification has proceeded in a piecemeal fashion, and the pieces do not always fit together very well....