Article 1 ECHR and Private International Law

Abstract

This chapter discusses the role of Article 1 ECHR. Article 1 ECHR defines the scope of the instrument, and the part this provision plays is an important preliminary issue for this research. In private international law cases, foreign elements are introduced to legal orders. Occasionally, private international law will introduce foreign elements from third countries, i.e. countries that are not Contracting Parties to the ECHR. It is interesting to consider what the role of Article 1 ECHR is in such cases. Following from the Court’s case law concerning Article 1 ECHR, the ECHR is applicable when a court of a Contracting Party either determines whether it is competent to hear an international case concerning an issue of private law, or recognizes and enforces a foreign judgment. This applies irrespective of whether a foreign law or judgment originates from either a Contracting or a non-Contracting Party (third country), or whether the case has a close connection to the Contracting Party concerned, or little to none at all. This observation may have important consequences, particularly for the use of the public policy exception in issues of private international law, as has been further elaborated in the later chapters on applicable law and the recognition and enforcement of foreign judgments.