Lex Rei Sitae in Perspective: National Developments of a Common Rule?

Abstract

The policies of the European Union (EU) do not always go hand in hand with the national policies of the Member States. Often there is tension, even a misfit, between the two. EU decision-making, or better, EU legislation already has many effects on the national legal orders in the Member States and from time to time creates problems at Member State level. While one of the primary goals of the EU is to facilitate cross-border movement, Member States traditionally coordinate the legal effects of such cross-border movement themselves through the rules of private international law (PIL). These PIL rules are national law and are generally aimed at fostering the efficient solution of problems caused when several legal systems apply to a cross-border situation.In respect to property law there is a single simple PIL rule in the lex rei sitae, the rule that determines the applicable law as the law of the place where an object of a property relation is situated. Having its origin in the Middle Ages, the rule has survived all of the modernising efforts in private international law. Where in other fields there is more attention for balancing the parties interests, the lex rei sitae rule survives until today. However, there are significant differences in the way in which legal systems apply the rule and, therefore, in the effects the rule produces. Property law aspects of private international law do not receive the attention they deserve. In this paper we week to uncover the origins and applications of the lex rei sitae rule, shared between French, German, Dutch and English law. These legal systems have in common that they use lex rei sitae to protect their own national legal order, be it with significant differences between them.This, so we conclude, is increasingly problematic in the context of the EU Internal Market, where there is free movement of goods, persons, services and capital. The misfit between EU policy, the well functioning of the Internal Market and national policy, the protection of the national legal order, is increasingly becoming more difficult to justify.