Harmonisation of Private International Law - Is It Possible At All?

School of Law, City University of Hong Kong, Hong Kong, China

*Corresponding Author:

Poomintr Sooksripaisarnkit
LLB (Thammasat), LL.M.
(International Commercial Law), PhD (Leicester)
Assistant Professor, School of Law, City
University of Hong Kong, Hong Kong, China
E-mail: psooksri@cityu.edu.hk

Received Date: April 32, 2012; Accepted Date: May 03, 2012; Published Date: May 07, 2012

Citation: Sooksripaisarnkit P (2012) Harmonisation of Private International Law – Is It Possible At All? J Civil Legal Sci 1:e103. doi:10.4172/2169-0170.1000e103

Copyright: © 2012 Sooksripaisarnkit P. This is an open-access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.

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Abstract

Unlike its public international law counterpart, private international law traditionally lies on domestic rules of each jurisdiction. Recently, some trends can be seen both on the regional level and the global level to harmonise private international law rules. What exactly have these attempts achieve? This editorial article seeks to explore and outline attempts on both regional and global levels in harmonising private international law rules. It argues that, like how public international law rules were formulated, a process of harmonisation of private international law requires a consensus among global community. To reach such a consensus, extensive discourses are necessary in order to glean rules which are commonly adopted.

Introduction

The European Union (EU) entered a new stage in the process of reducing the deficit of democratic legitimation of its politics. April 1^st marks the start of the European Citizens’ Initiative (ECI). The ECI is new instrument for EU citizens to participate directly in influencing the development and setting of European law (e.g. regulations and directives).

To look back: The Lisbon Treaty of December 2009 brought about major changes in the architecture of the EU e.g. concerning competences of and decision-making by the European Council, the Council of Ministers, the European Commission and the European Parliament. A further innovation the Lisbon treaty brought about is the ECI. Its legal basis is Article 11 (4): “Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties”.

ECI at a glance

• The rules and procedures of the ECI have been laid down in regulation No 211/2011 of the European Parliament and the Council of Ministers of 16 February 2011. It responds to the question how this brand new instrument of participatory democracy will work:

• Initiatives must be organized by a citizens committee composed of at least seven EU citizens who are residents of at least seven or more EU member countries;

• An initiative must be signed up by at least 1 million EU citizens from seven or more EU member countries (the requirement laid down in the regulation is at least one quarter of the EU member states);

• In each of the seven member countries a minimum number of signatures have to be acquired. The number of the collected signatures ranges from 3.750 in Malta as the smallest EU member up to 74.250 in Germany as the biggest EU member country (the number corresponds with the number of Members of the European Parliament elected in a member country);

• The minimum age to sign an ECI is 18 (except Austria where it is 16);

• The signatures must be collected within one year.

Further conditions for a successful ECI are:

• It must not manifestly fall outside the framework of the Commission’s power to submit a proposal for a legal act;

• It must not be manifestly abusive, frivolous or vexatious, and

• It must not be manifestly contrary to the values of the EU laid down in Article 2 of the Lisbon treaty.

• It is important to notice that the ECI does not oblige the Commission to make a draft for a new EU legislation. On refusal the Commission must give the reasons for its decision.

NGOs at a glance

NGOs belong to a big variety of interest groups trying to influence EU-politics and EU-legislation. In the last decades their influence on agenda setting, policy formulation and policy implementation has increased as their opportunities to participate in the multi-level system of the EU have tremendously improved –the last time by the Treaty of Lisbon (Article 11). NGOs have access to committees and expert groups set up by the European Commission and the European Parliament and they are members of the European Economy and Social Committee where civil society can make itself audible. Since June 2011 NGOs and other interest groups can apply for membership in the transparency register set up by the Commission and the Parliament. The registration is prerequisite for an enduring access to the buildings of the Commission and the Parliament and every registered interest group will receive information from the Commission in its field of concern. The online consultation (http://ec.europa.eu/yourvoice/consultations/ index_en.htm) is another relatively new instrument for NGOs to influence EU legal acts. They can submit their opinion to drafts of the Commission by online statements thus shaping the legislation output. In fact NGOs have meanwhile become real partners of the EU-institutions. Their expertise and experience are essential for good governance in the EU.

ECI and the role of NGOs

The question is whether the ECI is a potentially useful instrument for NGOs to influence EU-legislation, as they are not allowed to participate in an ECI. They could, however, play a leading role in organising successful initiatives. They have a lot of knowledge and experience in mobilizing public opinion, and they are aware of the Commission’s power to submit a proposal for a legal act. By means of their membership fees and donations they have money which they could put at the disposal of an initiative. Apart from being an useful instrument to shape EU-politics, NGOs should support the ECI for another reason. The ECI brings the citizens nearer to the EU-institutions, and as the representatives of civil society NGOs should do everything that helps to attain this goal.

Conclusion

In this editorial I raised the question whether the ECI is a useful instrument also for NGOs to influence EU-law. Because a conclusive answer is not yet possible there is much room for discussion in the Journal of Civil and Legal Sciences.

Further Reading

Civil Society Contact Group: Making your voice heard in the EU: A guide for NGOs, Brussels 2006.

European Commission: Guide to the European Citizens’ Initiative, Brussels November 2011.

Schnellbach, Christoph: The European Citizens’ Initiative: a useful instrument for public participation? In: C•A•Perspectives, 3 (2011).