Onko materiaalistuminen mahdollisuus kansainväliselle esineoikeudelle?
Avainsanat:
esineoikeus, kansainvälinen yksityisoikeus, lainvalinta, materiaalistuminen, sisämarkkinaoikeus, pääomamarkkinaunioniAbstrakti
Is Materialisation an Opportunity for International Property Law?
This article discusses the current state and future of international property law, or the private international law of property, in the light of the materialisation of private international law. Traditionally understood, materialisation refers to the influence of the aims and values of relevant substantive fields of law on the development and application of conflict rules. International property law shows few instances of materialisation in this sense, mainly due to its focus on thirdparty relations and the aim of foreseeability. In some situations, though, the results of the application of conflict rules need to be adjusted in ways that can be understood as materialisation. This article proposes expanding the notion of materialisation to cover the influence of instrumentalist rationality, notably extra-legal aims, on conflict rules. Examples of the possible sources of this influence include the EU’s internal market law and the free movement of goods, on the one hand, and the EU’s Capital Markets Union, on the other. Analysis of these examples in the article suggests both opportunities and risks for the development of international property law. Opportunities include better coordination and reconciliation of domestic and foreign interests through the improved application of existing conflict rules or the introduction of new ones. Risks relate to excessive instrumentalisation, which may undermine the conditions for the proper functioning of the systems of property law and private international law alike. Efforts should be aimed at balancing opportunities and risks.
