Do We Need a Rome 0 Regulation?

Abstract

With the Treaty of Amsterdam entering into force on 1 May 1999 the European Union has obtained legislative competence concerning judicial cooperation in civil matters. This competence includes the power to unify rules on applicable law (Art. 81(1), (2) letter c TFEU). There are already some European instruments based on this competence. All these instruments contain some identical provisions (e.g., ordre public, renvoi, escape clauses, overriding mandatory provisions). The article raises the question whether shared provisions should be taken out of these instruments and put into a new regulation (the so-called Rome ‘0’ Regulation). Such a Rome 0 Regulation could also deal with other aspects which are not yet covered by the existing instruments and which could also be placed in a general part of the rules on applicable law (e.g., qualification, preliminary questions, agency). Before he comes to the overall conclusion the author describes the advantages and disadvantages of such a Rome 0 Regulation. He takes into account not only the different legislative procedures within Article 81 TFEU for family and non-family law projects but also the special position of Denmark, the United Kingdom and Ireland within judicial cooperation in civil matters.