Private International Law, Quo Vadis PIL as a Perfect Conductor for Achieving Political Objectives? A Tale of Lost Innocence

Abstract

If PIL is studied as a discipline that is not isolated from other branches of law but that interacts with these other branches; if it is recognised how PIL is occasionally ‘used’ as a vehicle to achieve policy objectives or may at least make a difference; if it is revealed that PIL may act as a ‘hinge’, and if it is recognised that interaction with PIL may make a difference in various debates in which PIL initially did not seem to be an essential factor, then, the burning question arises how PIL should be ‘used’ in the future and what our attitude should be towards future PIL developments. A recent example illustrating the dynamics of the ‘discovery’ of PIL at the Dutch national level is the attempt to base rules of international marriage law on migration targets. It turns out that in the view of the Dutch legislator, PIL could have a role to play in the current migration and integration debate. The significance of PIL rules has become apparent in various current debates, as is shown by topics such as the regulation of international posting of workers within Europe or the liability of multinationals for environmental pollution outside Europe or international corporate social responsibility; in addition, both these topics are perfectly suitable as case studies exploring the role of PIL rules in decisions on whether to permit companies to take advantage of differences between legal systems. These case studies may also give a picture of the potential of PIL for the advocates of ‘social justice’. By now, the role PIL rules could play in addressing situations of ‘competing norms’ in a globalising world is attracting increasing international attention. But what is or should be the role of PIL? Does it have a ‘neutral’ role? Is PIL ‘neutral’ in the sense that PIL rules are supposed to result in the application of the legal system that is ‘most closely connected’ in any case – following on from the ‘neutral PIL’ as expounded by Von Savigny? Or is PIL ‘neutral’ in quite a different sense by now, namely that PIL is apparently unable to resist attempts to use this branch of law instrumentally and to mould it into a shape that best suits the result needed? Is PIL degenerating into a political tool, with the resulting loss of its innocence? But what is the position of modern trends in PIL where there is a focus on concerns like the protection of weaker parties? Can a specific PIL trend be opted for ‘a la carte’, so to speak, depending on whether it suits the requirements of the case, as in a pick and choose system? What interests can or may PIL serve at the end of the day?