Uniform Substantive Law and Private International Law
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Description
The expression 'uniform law' indicates a set of identically worded legal rules that are binding on a general level in more than one jurisdiction where they are also supposed to be interpreted and applied in the same manner. Actually, for such sets of rules to be considered uniform law, they must have been created with the intention to be interpreted and applied in one and the same manner throughout the jurisdictions where they are in force. Where this so-called animus unificandi is lacking, it may well be possible for the laws of different jurisdictions to be identical to each other, but they will nevertheless not constitute uniform law. This is why, for instance, the spontaneous, unintentional creation of identically worded legal rules in different jurisdictions as an answer to similar problems arising in practice do not constitute uniform law. The same is true as regards the unilateral reception of foreign legal rules—even though this may lead to legal rules of various jurisdictions being identical. Law that is simply 'harmonized', that is, law that has not been created with the intention of getting rid of the existing differences, but rather with the goal of merely reducing those differences (as is the case for the law originating from most EU directives), does not constitute uniform law. This does not mean that only those legal rules that fully correspond to each other can be considered uniform law. If this were the case, it would be impossible to ever speak of uniform law, as fully corresponding legal rules are very rare, even where the wording of the legal rules is identical. The reasons for divergence are manifold, such as the fact that the uniform texts are often drafted in different languages and are interpreted and applied differently in practice (see Tribunale di Rimini, 26 November 2002 [2003] Giur. it. 896). Therefore, the starting point for determining whether there is uniform law is the degree of intended similarity of the legal rules in question. Where the maximum degree is intended, ie where the law is supposed to be one and the same, uniform law may exist despite any factors that may have a negative impact on the uniformity aimed at. Where, however, from the outset, the efforts are merely aimed at the creation of a similar, harmonized law, one cannot speak of uniform law.
Source Publication
Encyclopedia of Private International Law
Source Editors/Authors
Jürgen Basedow, Giesela Rühl, Franco Ferrari, Pedro de Miguel Asensio
Publication Date
2017
Volume Number
2
Recommended Citation
Ferrari, Franco, "Uniform Substantive Law and Private International Law" (2017). Faculty Chapters. 566.
https://gretchen.law.nyu.edu/fac-chapt/566
