1.4.2. The 'Seat' of a Relationship

Protectionist elements do not normally form the objective of rules of private international

law under the abstract approach. Under the classic von Savignyan model the

selection of a particular connecting factor is aimed at bringing a legal relationship

home to its \ S e a t \ the legal system to which it belongs according to its 'nature'. If this

were the sole interest underlying a rule of private international law resulting in an

obstacle to trade, it ought to be considered incompatible with Community law. The

near metaphysical concept oVeigenthiiniTiche Natttr' cannot be recognised as a mandatory

requirement in the sense of the freedoms. Time has shown that a universal,

supranational scheme of private law relationships is effectively non-existent.h " Instead,

the rule of reason requires Member States to articulate a specific interest involved in

taking a certain measure which is to take precedence over free movement.M Neither

is the related goal ot international decisional harmony in itself to be considered a

mandatory requirement of the public interest. Admittedly, the internal market requires

decisional harmony, but only in respect of those measures that are justified by overriding

i n t e r e s t s . v Itthiswereotherwi.se, it would follow that an obstacle to trade could

be justified merely by having all Member States raise the same obstacle.

In reality, most rules of private international law under the abstract approach are not

based on a legal relationship's 'nature' but on more specific interests, such as the

protection of the economically weaker party or the protection of third-party interests.1 5'

Case-law suggests that many of the interests underlying the use of objective connecting

factors could be regarded as mandatory requirements capable of justifying obstacles

to trade. For instance, in the international law of contract the use of objective connecting

factors could be justified by reference to the protection of consumers"' or

employees."' Likewise the transparency of property relationships, between holders of

real rights inter se or vis-a-vis other creditors,"" as well as the protection of public and

private creditors" have been recognised as interests that could justify obstacles to trade.

Nevertheless, the important thing to note is that if a rule of private international law

results in an obstacle to trade, Member States will be forced to articulate the specific

interest underlying that rule. It will be up to the Court and not the Member State to

decide whether that interest must be accepted as taking precedence over the freedoms.