European Judicial Space and Diplomatic Relations: A Uniform Conflict of Law Issue?

Abstract

Undeniably, Public and Private international law have common roots, and courts have dwelled on a number of occasions whether or not they can apply the law of a State that is not recognised, or with whom the State of the forum has ended international relations. To answer this question, I juxtapose public and private international law concepts such as “Statehood” and “State” to identify possible conundrums and interplays of the two fields. In light of the available cases, different theories as to the effects on recognition on the applicable law are reconstructed, expressing a preference over the one that ensures the application of the law of nonrecognized States to private relationships, by building upon the theoretical division between public and private international law. This holds, provided no fundamental public interest of the State of the forum runs against it, and provided courts do not externally recognize the foreign entity as a “State”. The theory will also be weighed against the background of uniform conflict of laws rules, also raising the question whether or not the Court of Justice of the European Union could impose a definition of “State” for conflict of laws purposes upon (disagreeing) Member States.