Iris Canor (Israel), Senior Lecturer, College of Management Academic Studies, Law Faculty, Rishon Le Zion, Israel.  Research Project: "The Crossroads of European Union Law, Private International Law and Human Rights Law".

Dr. Iris Canor received her LL.B. from Tel-Aviv University (Israel), her LL.M. from the College of Europe (Brugge, Belgium) and a Doctorate in law from the Europa-Institute (University of Saarland, Germany). She also held visiting positions at the Max-Planck Institute of Public International Law, Heidelberg (Germany), and Columbia Law School. She is currently teaching at the College of Management Law School in Israel and at the Europa-Institute in the University of Saarland, Germany. In addition she is a member of the executive committee of Concord (Research Center for Integration of International Law in Israel). Her fields of research and teaching include European law, human rights, public international law and private international law with a special emphasis on the interplay between public international law and private international law. She published inter alia on institutional aspects of European law, on questions of sovereignty and occupation, on diplomatic protection and the right to citizenship, and on theories of private international law.

Research Project

The Crossroads of European Union Law, Private International Law and Human Rights Law

This study aims to discuss dilemmas concerning the interaction between choice-of-law rules and human rights issues from European Community viewpoint. The augmentation in the importance of private international law within European Community law, in recent year, is obvious. European integration broadens the perspective of trans-boundary law and therefore brings together European law and private international law increasingly often. The impact of European law on human rights law is also evident. The wider framework of European integration forced Europe gradually to take human (and social) rights more seriously. Hence, after giving a great deal of attention to economic-regulative barriers, Europe turns to examine the implications of divergent substantive private law legislation on its multi-cultural society.

However, it seems that the European Community legal system is not yet prepared to enter this new phase and fully absorb its dynamics. Indeed, Europe takes different fragmented paths in regulating the field of private international law while attempting to accommodate its human rights perspective. On the one hand, conflict of laws rules are legislated based on coordinated unification efforts. On the other hand, specific choice-of-law rules that are scattered around sectoral instruments of secondary EC legislation are enacted in a mostly uncoordinated trend. Finally, European law affects national choice-of-law rules which were not yet harmonized and exploits them for enhancing legal integration. This fragmentary development has not been in the spotlight of academic research.

Thus, when national choice-of-laws rules limit the scope of application of national substantive rules on the basis of the classical 'connecting factor' of nationality, they might be regarded as contradicting EC law which forbids discriminatory treatment on that basis. Within the territorial scope of the European Community the term foreigner might require a new definition. Additionally, expansion of the scope of application of the principle of 'mutual recognition' – which is often regarded as the de facto European choice-of-law rule - beyond the EC free movement law might have an excessive harmonizing effect on the national legal systems. Therefore, it might mandate further elaboration of the principle of European ordre public. Finally, private international law has to determine the extent to which human and fundamental rights can be evaluated on terms dictated by the freedoms of the internal market. The principle of 'mutual recognition' might on the one hand be anything but supportive to the protection of human rights, advancing the phenomenon of race to the bottom (such as avoiding social rights of employees). At the same time, paradoxically as it might sound, it might have a 'domino', 'uplifting' liberalization catalyst effect (such as recognizing same-sex marriage).

Though private international law is an established field of law with a long history which is based on certain principles, the common market provides a particular challenge for European conflicts law in general and its interaction with European human rights law in particular. This study seeks to define more precisely the concerns of these disciplines once they overlap, and to contribute to a better accommodation of the different legal mechanisms which should be invoked in drawing the new boundaries between them.

Emile Noel Fellows for the Academic Year 2008-2009