2 . 4 . C O N C U R R E N T ( E X H R C I S L O F ) R E G U L A T O R Y J U R I S D I C T I O N : C O N E L I O T O E L A W S

I t i s possible that b y virtue o f their international scope measures o f two o r more Member

States will overlap. Typically this occurs when more than one Member State seeks

Section Two. Community Law and Cross-Border Insolvency Regulation

to regulate the same activity, or (at least) one Member State seeks to regulate conduct

that occurs in another Member S t a t e . ' " Thus, it an interest has transnational characteristics,

such as with migratory birds instead of a purely local species, the (non- (protection

ot that species may in fact provide for a sufficiently close connection with

several Member States lor them to take regulatory measures. In addition, even when

an interest is located entirely or predominantly within one Member State it mav still

be affected by conduct that takes place outside that Member State's own territory. As

Alpine Investments illustrates this may allow Member States to take measures has in»

extraterritorial effect. However, the chances are that those measures conflict with the

laws ot the Member State where the activity takes place. Where in Alpine Investments

the Netherlands aimed to protect the reputation of its financial sector and for (hat

purpose was entitled to extend its prohibition on cold calling extraterritorially to

marketing directed at consumers in other Member States, those other Member States

would in principle be entitled to take measures necessary in order to protect its

consumers. The result of such overlapping regulatory measures is that transactions

become subject to multiple legal regimes. Double regulation may hinder transactions

significantly, and where those transactions are being entered into in the exercise of

one of the freedoms an obstacle to trade is likely to arise.1"'

These instances of concurrent exercise of regulatory jurisdiction essentially involve

a (true) 'conflict of laws'.1" The legal norms of two or more jurisdictions simultaneously

purport to control the same legal issue or set of facts. To be sure, these

situations can and must be distinguished from those in which the principle of mutual

recognition applies. Mutual recognition does not typically involve any degree of extraterritoriality

of a national measure (rule of law). Moreover, the use of the principle

of mutual recognition implies that the law of a Member State ( o f origin) has been

applied and protects a particular interest at the time when another Member State ( of

destination) desires to apply its own law. In contrast, the current question concerns

a situation in which two (or more) laws desire to be applied but have not (yet) been

applied and the interests thus remain unregulated. In other words, mutual recognition

implies chronology, while a conflict of laws implies this arises simultaneously. The

question that is raised, then, is whether rules or mechanisms may be inferred from

Community law and the Court's case-law resolving these 'conflicts ol'laws'bv making

a choice or by instructing the Member States in some other way.