May 11
2021

European Private International Law. Commercial Litigation in the EU

Geert van Calster

review by

Dominik Düsterhaus

As Figaro famously found, there is no genuine praise without the right to blame. [« Sans la liberté de blâmer, il n’est point d’éloge flatteur. » (Beaumarchais, Le mariage de Figaro, Acte V, scène 3)]. The well-read and quotophile Geert van Calster may thus allow me to indulge in frankness and find (some) fault with his superbly researched, argued and drafted ‘European Private International Law  – Commercial Litigation in the EU’ (3rd edition, Hart Publishing 2021). 

Whilst I can indeed recommend this book to any Private International Law crack, I am not sure it will help less experienced practitioners or students discovering this area of law come to grips with it. What I find most problematic, and experienced on the ground when assigning the book’s 2nd edition to three batches of graduate students, is the relative imbalance between, on the one hand, the didactics of Private International Law and, on the other, the author’s generous comments on court decisions. In my opinion, the latter are given a bit too much space. In this connection, I am particularly dubious whether, in order to understand how the Brussels Judgment Regulation works, one needs to know who sat on the bench when the Court of Justice ruled on any one of its provisions. The book’s focus on reporting and commenting on cases inevitably results in the chapters on jurisdiction alone being three times as long as those dealing with applicable law which, in my understanding, solely constitutes ‘the core of private international law’, namely the author’s comprehensive label for both jurisdiction and applicable law. I happily concede that the terminology and ensuing categorisation vary among the legal orders. Be that as it may, the conflict of laws, which Geert van Calster concisely introduces and explains in the opening chapter, certainly deserves more space. In my view, the presentation of the EU’s Rome Regulations could ideally be merged with that introduction, thus allowing for a comparison of the theoretical foundations with their EU implementation without having to jump back and forth. 

It also strikes me that, in placement and content, the discussion of the rules governing the recognition and enforcement of judicial decisions appears to be little more than an afterthought rounding up the chapters on jurisdiction. Even though this correctly reflects the genesis of these rules, it seems to me that practitioners grapple no less with the vagaries of enforcement than they do with the establishment of jurisdiction. Here one could also expect a cursory presentation of the second-generation instruments allowing for automatic enforcement. How to do that is aptly demonstrated in the chapter on the Insolvency Regulation.

I understand that the book’s arguable imbalances are largely due to the author’s choice to update it in essence with his blogposts on recently decided cases, rather than revamp it altogether for a new edition. I also very much enjoy reading his takes on the latest EU and national case law. Insightful and mostly to the point, his comments indeed epitomise law blogging. I nevertheless sense that their inclusion in the book may leave its less informed target audience not seeing the wood for the trees. 

Whoever follows the legislative and judicial dealings with European Private International Law will agree that more and better guidance on its application is in dire need. Admiring Geert van Calster’s grasp of the matter and first-hand knowledge of domestic and European practice, I wonder whether a more transversal approach focusing on the internal coherence of this field of law would not allow him to produce the ultimate treatise on the matter. Specifically the fascinating final chapter on how to operationalise global corporate social responsibility could perfectly well serve as a blueprint for such endeavour. 

In any case, author and publisher have perfectly timed the publication of this 3rd edition, which not only provides a short (but what else do we know?) guidance on the effects of Brexit, but also covers the latest twists of the case law up until 2021 if only, once again, a bit too excessively for my taste. From an editorial point of view, more stringent editing could have provided better equilibrium and eliminated occasional bloomers.  

All in all, this book is still a must-have for Private International Law lovers. Novices should mind the caveats expressed above and may perhaps want to wait for a new edition of, say, Bogdan and Pertegás Sender’s ‘Concise Introduction to EU Private International Law’, which is very accessible and covers all instruments in the field of European civil judicial cooperation. 

 

Dominik Düsterhaus is a référendaire at the Court of Justice of the European Union.

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