European Private International Law: Embracing New Horizons or Mourning the Past?

The Eu Optional Instrument: Absorbing the Private International Law Implications of a Common European Sales Law

“…120 Such competence in foro exterior has been justified, and confirmed by the Court of Justice, 121 on the premise of responding to the needs of the internal market 122 either on the basis of such rules impeding one of the fundamental freedoms or distorting competition. 123 As stated earlier, the effective application of the CESL will depend upon its interaction with the Rome I Regulation, 124 when enacted as a second (or supplementary), optional 125 substantive Contract Law applicable to contracts conducted between the EU Member States. Parties situated in different jurisdictions must be able to ascertain with certainty the law applicable to their obligations and the consequential effect of those laws in order, as FENTIMAN alludes, to assess and determine transaction and litigation risks associated with commercial activities.…”

Equal Treatment on the Grounds of Movement and Union Choice-of-Law Rules under Article 81 TFEU

“…This appears rather obvious, taking into account not only the very aim of these rules, but also the so-called 'internal market requirement' stipulated in Article 81 TFEU. 63 According to it, Union choice-of-law rules can be adopted when they are necessary for the proper functioning of the internal market. In light of Article 26 TFEU, this means that the Union legislator is required to demonstrate that the proposed unified choice-of-law rules are necessary for the cross-border movement of goods, services, people, and capital.…”