authority. 33 Secondly, understand ing the relationship between law and the market in the context of a structured regulatory framework, such as can be found in an integrated or federal structure, may help suggest ways in which this can be achieved. In such a context, cross border externalities and market breakdowns are dealt with by the central legislative authority through harmonised substantive rules. 4 Whereas they take the form of minimum standards for internal market transactions, they are also projected into the world market in the form of internationally mandatory rules, in cases where the European legislator has decided that the connection with the Community is sufficient to justify its interest. 35 In both instances, they designed to provide an effective regulatory framework within which party choice of law can operate effectively. However, whereas harmonised substantive legislation can obviously project a coherent view of the requirements of collective welfare within the internal market, this is clearly not the case in a global setting. The new wine thus resides in the idea that conflicts of economic regulation should be fitted into a larger picture of coherent market regulation, with a clear focus on global welfare. More than a change in vocabulary, it implies redefining the scope and function of the conflicts of laws 5. The dual function of choice of law in the global market. The transformation in perspective highlighted by economic analysis is evidenced by the increasing pressure to include public regulation within the scope of conflicts of laws. Firstly, when desirable, inter-jurisd ictional competition is not perceived as being restricted to fields traditionally bearing the label of private law,, but also extends to the regulation of public goods on offer in different locations to mobile firms and capital. Secondly, absent a central authority or international agreement to deal with third-party effects, the only -albeit second-best -means to reduce the discrepancy between national laws and global markets would be to extend the scope of the conflict of laws to fields currently bearing a public law'label, in order to design appropriate tests with which to allocate economic regulatory authority. Here, then, is the political economy of Inconsistencies leading to over-regulation are obviously particularly intolerable each of the regulations involved provide for criminal sanctions. See the dilemma in the Nippon Papercase, Dorsey J Ellis Jr, Projecting the Long Arm of the Law. Extraterritorial Crim inal Enforcement of US Antitrust Laws in the global Economy, I Wash U Global Stud L Rev 477(2002). But of course, regulatory gaps and overlaps are a well known feature of the unilateralist and monopolistic methodologies by which states define the scope of their economic regulation(see text below, 8 13) asymmetries, see below, fn 49), or ensure aga inst restrictions to competition. On the scope of Europep e These may either provide for consumer/investor protection(essentially designed to cure information contract law, which extends to fields such as competition law not generally included in the category of private contract law, see Stefan Grundmann, The Structure of European Contract Law, 4 European Review of private ,505-528(2001) A close connectionwith the territory of a Mem ber State is usually required for consumer legislation n (see P Lagarde, 'Heurs et malheurs ). The reach of Community competition law is measured by a test resembling the US 'effects test(see below, fn 124) There is considerable debate as to the desirability and feasibility of intemational agreement on conflicts of econom ic regulation(for instance, under the aegis of the WTO); see Eleanor M Fox, 'Antitrust and Regulatory Federalism: Races Up, Down and Sideways, NUY LR 1781(2000). It is also true-and this is the risk inherent in any second-best solution such as that proposed by this paper- that in the absence of agreement, if courts attempt to mimic what international agreement might achieve, prisoner's dilemma dynamics may also set in(see Dodge, Extraterritoria lity and Conflict-of-Laws Theory Shut, p On this discrepancy, see Eleanor Fox, National Law, Global Markets and Hartford Fire: Eyes Wide
authority.33 Secondly, understanding the relationship between law and the market in the context of a structured regulatory framework, such as can be found in an integrated or federal structure, may help suggest ways in which this can be achieved. In such a context, crossborder externalities and market breakdowns are dealt with by the central legislative authority, through harmonised substantive rules.34 Whereas they take the form of minimum standards for internal market transactions, they are also projected into the world market in the form of internationally mandatory rules, in cases where the European legislator has decided that the connection with the Community is sufficient to justify its interest.35 In both instances, they are designed to provide an effective regulatory framework within which party choice of law can operate effectively. However, whereas harmonised substantive legislation can obviously project a coherent view of the requirements of collective welfare within the internal market, this is clearly not the case in a global setting. The new wine thus resides in the idea that conflicts of economic regulation should be fitted into a larger picture of coherent market regulation, with a clear focus on global welfare. More than a change in vocabulary, it implies redefining the scope and function of the conflicts of laws. 5. The dual function of choice of law in the global market. The transformation in perspective highlighted by economic analysis is evidenced by the increasing pressure to include public regulation within the scope of conflicts of laws. Firstly, when desirable, inter-jurisdictional competition is not perceived as being restricted to fields traditionally bearing the label of ‘private law’, but also extends to the regulation of public goods on offer in different locations to mobile firms and capital. Secondly, absent a central authority or international agreement to deal with third-party effects, the only - albeit second-best36 - means to reduce the discrepancy between national laws and global markets37 would be to extend the scope of the conflict of laws to fields currently bearing a ‘public law’ label, in order to design appropriate tests with which to allocate economic regulatory authority. Here, then, is the political economy of 33 Inconsistencies leading to over-regulation are obviously particularly intolerable each of the regulations involved provide for criminal sanctions. See the dilemma in the Nippon Paper case, Dorsey J Ellis Jr, ‘Projecting the Long Arm of the Law: Extraterritorial Criminal Enforcement of US Antitrust Laws in the Global Economy’, 1 Wash U Global Stud L Rev 477 (2002). But of course, regulatory gaps and overlaps are a wellknown feature of the unilateralist and monopolistic methodologies by which states define the scope of their economic regulation (see text below, § 13). 34 These may either provide for consumer/investor protection (essentially designed to cure information asymmetries, see below, fn 49), or ensure against restrictions to competition. On the scope of ‘European contract law’, which extends to fields such as competition law not generally included in the category of private contract law, see Stefan Grundmann, ‘The Structure of European Contract Law’, 4 European Review of Private Law, 505-528 (2001). 35 A ‘close connection’ with the territory of a Member State is usually required for consumer legislation (see P Lagarde, ‘Heurs et malheurs’). The reach of Community competition law is measured by a test resembling the US ‘effects’ test (see below, fn 124). 36 There is considerable debate as to the desirability and feasibility of international agreement on conflicts of economic regulation (for instance, under the aegis of the WTO); see Eleanor M Fox, ‘Antitrust and Regulatory Federalism: Races Up, Down and Sideways’, NUY L R 1781 (2000). It is also true - and this is the risk inherent in any second-best solution such as that proposed by this paper - that in the absence of agreement, if courts attempt to mimic what international agreement might achieve, prisoner’s dilemma dynamics may also set in (see Dodge, ‘Extraterritoriality and Conflict-of-Laws Theory’. 37 On this discrepancy, see Eleanor Fox, ‘National Law, Global Markets and Hartford Fire: Eyes Wide Shut’, 68 Antitrust LJ 73 (2000)
choice of law in a market setting. Fostering legislative competition through party choice as long as social and private costs coincide(I), the conflict of laws should also be relied upon to assert a regulatory function in cases of cross-border externalities (ID) I Choice of law as an instrument of inter-jurisdictional competition 6. Reversal of perspectives. Traditional'conflicts'rhetoric suggests that choice of law has a peace-keeping function between rival, mutually exclusive regulatory claims. The various theoretical models reinforce this impression: multilateralism carries a policy of alignment in order to produce decisional harmony out of chaos, whereas neo-statutist theories tend to pursue an agenda of political deference designed to induce reciprocity. Contemporary economic analysis offers a reverse perspective, in which the idea that diversity is a source of disorder to be smoothed out wherever possible, is superseded by the conviction that competition between national legislators is basically salutary. 38 Far removed from its trad itional justifications, party choice in cross-border transactions is viewed through economic lenses as instrumental in stimulating such competition, both in a federal context, where it promotes market integration(A)and, more controversially, on a global level, where it can contribute to efficient horizontal allocation of regulatory authority(B) LA Choice of law and the economics of federalism 7. Three new uses for choice of law. In a federal or vertically integrated structure, inter juris ictional competition appears an alternative to centralized regulation. The theme of regulatory competition, with the correlative question of the optimal level at which regulation should take place, has only recently begun to appear as a subject for debate in the European Union, 9 where it is more common to think of legal diversity as being at odds with the very idea of an internal market. 40 Borrowed from US scholarship, 4 the economics of federalism now raises new issues both as to the ways in which legislative authority should be allocated 38 While emphasising the importance of the conflict of laws, this perspective also reinstates comparative law as a source of informed choice See fora first, excellent, account, Wolfgang Kerber, "Interjurisdictional Competition within the (2000); A Ogus, ' Competition between National Legal Systems: A Contribution of Economic Analysis 3 Eichenberg on the concept of FoCJ'(functional, overlapping, competing jurisdictions), in"FOCJ: Competitive Governments for Europe, 16 IntT Rev L& Econ 315(1996) Indeed, until recently, a strong trend towards centralisation of regulatory authority within the EU tended to make diversity suspect; integration seemed to imply harmonisation at the highest level, and the attendant'death'of conflicts and comparative law(see, for the latter, Ch von Bar, From Principles to Codification: Prospects for European Private Law, 8 Colum Eur L 379(2002), Symposium on Methodology and Epistemology of Comparative Law, Brussels, October 2002, to be published by Hart Publishing) The volume of literature on this subject is impressive. See, in particular, the special issue of the Journal of International Economic La(2000), devoted to Regulatory Competition in Focus, with contributions by Daniel C Esty, Richard L Revesz, Damien Gerardin, Jonathan R Macey, Alan O Sykes and Joel P Trachtman, concerning a wide range of different substantive fields. See also Ulen, 'Economic and Public Choice Forces in Federalism, 6 Geo Mason L Rev 921; Frank H Easterbrook, Federa lism and European Business Law, 14 Intt Revl d econ 125
choice of law in a market setting. Fostering legislative competition through party choice as long as social and private costs coincide (I), the conflict of laws should also be relied upon to assert a regulatory function in cases of cross-border externalities (II). I Choice of law as an instrument of inter-jurisdictional competition 6. Reversal of perspectives. Traditional ‘conflicts’ rhetoric suggests that choice of law has a peace-keeping function between rival, mutually exclusive regulatory claims. The various theoretical models reinforce this impression: multilateralism carries a policy of alignment in order to produce decisional harmony out of chaos, whereas neo-statutist theories tend to pursue an agenda of political deference designed to induce reciprocity. Contemporary economic analysis offers a reverse perspective, in which the idea that diversity is a source of disorder to be smoothed out wherever possible, is superseded by the conviction that competition between national legislators is basically salutary.38 Far removed from its traditional justifications, party choice in cross-border transactions is viewed through economic lenses as instrumental in stimulating such competition, both in a federal context, where it promotes market integration (A) and, more controversially, on a global level, where it can contribute to efficient horizontal allocation of regulatory authority (B). I.A Choice of law and the economics of federalism 7. Three new uses for choice of law. In a federal or vertically integrated structure, interjurisdictional competition appears an alternative to centralized regulation. The theme of regulatory competition, with the correlative question of the optimal level at which regulation should take place, has only recently begun to appear as a subject for debate in the European Union,39 where it is more common to think of legal diversity as being at odds with the very idea of an internal market.40 Borrowed from US scholarship,41 the economics of federalism now raises new issues both as to the ways in which legislative authority should be allocated 38 While emphasising the importance of the conflict of laws, this perspective also reinstates comparative law as a source of informed choice. 39 See for a first, excellent, account, Wolfgang Kerber, ‘Interjurisdictional Competition within the European Union’, in The Deregulation of Global Markets, Weimar Symposium 1998, Fordham Int’l LJ 217 (2000); A Ogus, ‘Competition between National Legal Systems: A Contribution of Economic Analysis to Comparative Law’, 48 ICLQ 405 (1999). On the complex multi-level character of such competition, see Frey & Eichenberg on the concept of ‘FOCJ’ (functional, overlapping, competing jurisdictions), in ‘FOCJ: Competitive Governments for Europe’, 16 Int’l Rev L & Econ 315 (1996). 40 Indeed, until recently, a strong trend towards centralisation of regulatory authority within the EU tended to make diversity suspect; integration seemed to imply harmonisation at the highest level, and the attendant ‘death’ of conflicts and comparative law (see, for the latter, Ch von Bar, ‘From Principles to Codification: Prospects for European Private Law’, 8 Colum J Eur L 379 (2002); Symposium on Methodology and Epistemology of Comparative Law, Brussels, October 2002, to be published by Hart Publishing). 41 The volume of literature on this subject is impressive. See, in particular, the special issue of the Journal of International Economic Law (2000), devoted to ‘Regulatory Competition in Focus’, with contributions by Daniel C Esty, Richard L Revesz, Damien Gerardin, Jonathan R Macey, Alan O Sykes and Joel P Trachtman, concerning a wide range of different substantive fields. See also Ulen, ‘Economic and Public Choice Forces in Federalism’, 6 Geo Mason L Rev 921; Frank H Easterbrook, ‘Federalism and European Business Law’, 14 Int'l Rev L & Econ 125
ertically within the EU, emphasising the importance of subsid iarity, 42 and, paradoxically for deregulation is linked to the perceived dangers of centralisation as giving rise to rent. re to the importance of emulation between national legislators as a factor of integration. 43 Des seeking and problems of public choice, excessive bureaucratisation and an inability to respond to individual preferences. 4 Lowering the level at which regulation takes place in order to introduce more market pressure on legislators implies reintroducing the conflict of laws in fields which might have been mapped out for unification. However, as an economic tool of federalism, the conflict of laws has to fit into a sophisticated, multi-level scheme which affects its trad itional function in several ways. Firstly, by maintaining a field of free regulatory competition between national laws, it is an important instrument in the vertical allocation of competences within the Union(a). Secondly, under the pressure of market integration, it has simultaneously to promote fundamental market freedoms(b). Finally, extend ing its scope to the market for public goods, it must ensure that competition between national economic policies remains undistorted (c) 8. (a) Setting the vertical allocation of competences. European contract law+5 rests upon the distinction between centrally harmonised regulation, designed to cure market failures, 46 on the one hand, and national choice-facilitating rules+ which remain amenable to the conflict of laws, and in particular to free party choice, on the other. 48 Party autonomy thus operates within a centralised regulatory framework which cures informational asymmetries and restrictions of competition. 49 However, ensuring the full cross-border effect of party The links between subsidiarity and regulatory competition on various levels also give rise to an abundant literature. See, for example, R van den Bergh, Subsidiarity as an Econom ic Demarcation Principle and the Emergence of European Private Law, 5 Maastricht Journal 129(1998); George Bermann, " European Community Law from a US Perspective, 4 TulJInt7& Comp L5(1995) Christian Kirchner, The Principle of Subsidiarity in the Treaty on European Union: A Critique from the Perspective of Constit utional Economics TulJ Int'l& Comp L 291(1998), Breton, Cassone& Fraschini, "Decentralization and Subsidiarity: Toward a Theoretical Reconciliation,, 19U PaJ Int/ Econ L 21(1998) ee Demarcation Principle, on competition as a learning process and its contribution to integratio Kerber, "Interjurisdictional Competition,, 218 This distinction is central to the 1980 Rome Convention on the Law Applicab le to Contractual Obligations, where it appears in article 3(party freedom )and articles 5 to 7(intemational mandatory rules The regulation of market failures is designed essentia ly to remedy informationalasy mmetries, through mandatory disclosure rules(on the priority given by the ECJ as from its Cassis de Dijon ruling in 1979to mandatory disclosure over substantive protection, see Grundmann, The Structure of European Contract Law 513). Market failures are also addressed through Community rules against restriction of competition, caught by article 7. State failure, as opposed to market breakdown, is addressed through subsidiarity These are essentially the rules of classical contract law perta ining to the formation and perfo the contract, and designed to help parties use their market freedom Nationalrules of this category are not subject to scrutiny under fundamental freedoms: ECJ Alsthom Atlantique, 24 Jan 1991, C-339/89 49 Protective legislation applica ble to cross-border consumer contracts or internationalsecurities transactions, such as those adopted by European Community secondary legislation, are designed to eradicate ormational asymmetries, which might otherwise lead to faulty choice-includ ing choice of the applicable law focus of Community law on disclosure rather than on substantive rules of consumerprotection
vertically within the EU, emphasising the importance of subsidiarity,42 and, paradoxically, as to the importance of emulation between national legislators as a factor of integration.43 Desire for deregulation is linked to the perceived dangers of centralisation as giving rise to rentseeking and problems of public choice, excessive bureaucratisation and an inability to respond to individual preferences.44 Lowering the level at which regulation takes place in order to introduce more market pressure on legislators implies reintroducing the conflict of laws in fields which might have been mapped out for unification. However, as an economic tool of federalism, the conflict of laws has to fit into a sophisticated, multi-level scheme, which affects its traditional function in several ways. Firstly, by maintaining a field of free regulatory competition between national laws, it is an important instrument in the vertical allocation of competences within the Union (a). Secondly, under the pressure of market integration, it has simultaneously to promote fundamental market freedoms (b). Finally, extending its scope to the market for public goods, it must ensure that competition between national economic policies remains undistorted (c). 8. (a) Setting the vertical allocation of competences. European contract law45 rests upon the distinction between centrally harmonised regulation, designed to cure market failures,46 on the one hand, and national choice-facilitating rules47 which remain amenable to the conflict of laws, and in particular to free party choice, on the other.48 Party autonomy thus operates within a centralised regulatory framework which cures informational asymmetries and restrictions of competition.49 However, ensuring the full cross-border effect of party 42 The links between subsidiarity and regulatory competition on various levels also give rise to an abundant literature. See, for example, R van den Bergh, ‘Subsidiarity as an Economic Demarcation Principle and the Emergence of European Private Law’, 5 Maastricht Journal 129 (1998); George Bermann, ‘European Community Law from a US Perspective’, 4 Tul J Int’l & Comp L 5 (1995); Christian Kirchner, ‘The Principle of Subsidiarity in the Treaty on European Union: A Critique from the Perspective of Constit utional Economics’, Tul J Int’l & Comp L 291 (1998), Breton, Cassone & Fraschini, ‘Decentralization and Subsidiarity: Toward a Theoretical Reconciliation’, 19 U Pa J Int’l Econ L 21 (1998). 43 See Kerber, ‘Interjurisdictional Competition’, and Van den Bergh, ‘Subsidiarity as an Economic Demarcation Principle’, on competition as a learning process and its contribution to integration. 44 Kerber, ‘Interjurisdictional Competition’, 218. 45 This distinction is central to the 1980 Rome Convention on the Law Applicab le to Contractual Obligations, where it appears in article 3 (party freedom) and articles 5 to 7 (international mandatory rules). 46 The regulation of market failures is designed essentially to remedy informational asymmetries, through mandatory disclosure rules (on the priority given by the ECJ as from its Cassis de Dijon ruling in 1979 to mandatory disclosure over substantive protection, see Grundmann, ‘The Structure of European Contract Law’, 513). Market failures are also addressed through Community rules against restriction of competition, caught by article 7. State failure, as opposed to market breakdown, is addressed through subsidiarity. 47 These are essentially the rules of classical contract law pertaining to the formation and performance of the contract, and designed to help parties use their market freedom. 48 National rules of this category are not subject to scrutiny under fundamental freedoms: ECJ Alsthom Atlantique, 24 Jan 1991, C-339/89. 49 Protective legislation applicable to cross-border consumer contracts or international securities transactions, such as those adopted by European Community secondary legislation, are designed to eradicate informational asymmetries, which might otherwise lead to faulty choice - including choice of the applicable law. On the focus of Community law on disclosure rather than on substantive rules of consumer protection
autonomy50 also requires the removal of national regulatory barriers which interfere with the access to national markets. Regulation of market failure doubles up as a market integration issue. I Community law therefore imposes a second, parallel, series of constraints on Member States, which must refrain from applying measures which will lead to over-regulation or multiple burdens which restrict access to foreign markets. Scrutiny under market freedoms article 3 of the Rome Convention. Thus, the conflict rule governing transactions on thf E may apply to any form of mandatory state regulation which is internationally enforceable under articles 5 to 7 of the Rome Convention, includ ing measures implementing Community directives, 2 but does not apply to the choice-facilitating rules which fall within the scope of internal market draws a double divid ing line: it demarcates internationally mandatory regulation from the scope of free choice, while simultaneously ensuring the vertical allocation of competence between Community law, imposing minimum(consumer protection) or maximum standards(market freedoms), and regulation at the lower, Member State level of the garden variety of contract law. If the double line ad mitted ly lacks clarity in some cases, it may be due to fluctuations in the case- law of the European Court of Justice as to the desirable extent of state competition. 53 However, the encounter between the economic dynamics of Community law and the more trad itional private law concerns of the conflict of settle. +Thus, pre-emptive law under market freedoms is not necessarily internationall laws inevitably brings about shifts in trad itional categories, which may also require time mandatory within the trad itional meaning of article 7 of the Rome Convention, whereas national public economic regulation may similarly be disqualified as such and subjected to party choice (mandated as far as national measures are concerned by the Court of Justice in Cassis de Dijon and as far as concerns the Community legislator by funda mental freedoms and proportionality ) see Stefan Grundman, The Moloney, EC Securities Regulation, Oxford EC Law Library, 200 e field of securities regulation, see Niamh Structure of European Contract Law. On similar developments in the 50 Such is the primary function of internal market freedoms under the EU Treaty; see Grundmann,"The Structure of European Contract Law, 510 51 On the fact that the integration issue sometimes eclipses substantive policies, in particularinvestor protection in the field of securities regulation, see Niamh Moloney, EC Securities Regulation See, for example, CJCE C-369/96& C376/96, 23 Novem ber 1999, Arblade; 15 March 2001, Mazzoleni, extending the scrutiny to rules providing for internationally manda tory rules of the forum-host state providing for minimum salary; see also below, under(b ). The scrutinised measures may include rules not traditionally seen as contract law, including rules of public law, see Grundmann, The Structure of European Contract Law See Jukka Snell, Goods and Services in EC La. In implementing the economic freedoms, the Court of Justice seems to hesitate between a model which fosters state competition, towards a more centralised model, in which EC scrutiny encroaches on cases in which there is no protectionist intent or effect, pre-empting choice of law and restricting party autonomy. Thus, the 1995 Bosman case implements a very expansive reading of the to caty, based on the idea of market access, in which, practically, the very existence of a conflict of laws seems see Jukka Snell, Goods and Services in EC L 54 On these shifts, see Hans Ulrich Jessurun d'Oliveira, The EU and a Metamorphosis of Private International Law, in Reform and Development ofprivate International Law: Essays in HonourofSir Peter North. OUP. 2002. 111 The allocation of regulatory com petence between the home and host countries in the areas subject to scrutiny under the econom ic freedoms concems points of both public and private law, a given determination of the applicable law may be pre-empted under the home country principle if it gives rise to a multiple burden for
autonomy50 also requires the removal of national regulatory barriers which interfere with the access to national markets. Regulation of market failure doubles up as a market integration issue.51 Community law therefore imposes a second, parallel, series of constraints on Member States, which must refrain from applying measures which will lead to over-regulation or multiple burdens which restrict access to foreign markets. Scrutiny under market freedoms may apply to any form of mandatory state regulation which is internationally enforceable under articles 5 to 7 of the Rome Convention, including measures implementing Community directives,52 but does not apply to the choice-facilitating rules which fall within the scope of article 3 of the Rome Convention. Thus, the conflict rule governing transactions on the internal market draws a double dividing line: it demarcates internationally mandatory regulation from the scope of free choice, while simultaneously ensuring the vertical allocation of competence between Community law, imposing minimum (consumer protection) or maximum standards (market freedoms), and regulation at the lower, Member State level, of the garden variety of contract law. If the double line admittedly lacks clarity in some cases, it may be due to fluctuations in the case-law of the European Court of Justice as to the desirable extent of state competition.53 However, the encounter between the economic dynamics of Community law and the more traditional private law concerns of the conflict of laws inevitably brings about shifts in traditional categories, which may also require time to settle.54 Thus, pre-emptive law under market freedoms is not necessarily internationally mandatory within the traditional meaning of article 7 of the Rome Convention, whereas national public economic regulation may similarly be disqualified as such and subjected to party choice.55 (mandated as far as national measures are concerned by the Court of Justice in Cassis de Dijon and as far as concerns the Community legislator by fundamental freedoms and proportionality), see Stefan Grundman, ‘The Structure of European Contract Law’. On similar developments in the field of securities regulation, see Niamh Moloney, EC Securities Regulation, Oxford EC Law Library, 2002. 50 Such is the primary function of internal market freedoms under the EU Treaty; see Grundmann, ‘The Structure of European Contract Law’, 510. 51 On the fact that the integration issue sometimes eclipses substantive policies, in particular investor protection in the field of securities regulation, see Niamh Moloney, EC Securities Regulation. 52 See, for example, CJCE C-369/96 & C376/96, 23 November 1999, Arblade; 15 March 2001, Mazzoleni, extending the scrutiny to rules providing for internationally mandatory rules of the forum -host state providing for minimum salary; see also below, under (b). The scrutinised measures may include rules not traditionally seen as contract law, including rules of public law; see Grundmann, ‘The Structure of European Contract Law’, 515. 53 See Jukka Snell, Goods and Services in EC Law. In implementing the economic freedoms, the Court of Justice seems to hesitate between a model which fosters state competition, towards a more centralised model, in which EC scrutiny encroaches on cases in which there is no protectionist intent or effect, pre-empting choice of law and restricting party autonomy. Thus, the 1995 Bosman case implements a very expansive reading of the Treaty, based on the idea of market access, in which, practically, the very existence of a conflict of laws seems to generate EC competence. On the extent to which it may be necessary to distinguish the different freedoms, see Jukka Snell, Goods and Services in EC Law. 54 On these shifts, see Hans Ulrich Jessurun d’Oliveira, ‘The EU and a Metamorphosis of Private International Law’, in Reform and Development of Private International Law: Essays in Honour of Sir Peter North, OUP, 2002, 111. 55 The allocation of regulatory competence between the home and host countries in the areas subject to scrutiny under the economic freedoms concerns points of both public and private law; a given determination of the applicable law may be pre-empted under the home country principle if it gives rise to a multiple burden for