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Cheshire, North and Fawcett: Private International Law, 15th Edition by Grušić, Uglješa; Heinze, Christian; Merrett, Louise; Mills, Alex; Otero García-Castrillón, Carmen; Sophia Tang, Zheng; Trimmings, Katarina; Walker, Lara (28th September 2017)

Part I Introduction, 2 Historical Development and Current Theories

Paul Torremans

From: Cheshire, North and Fawcett: Private International Law (15th Edition)

Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett

Subject(s):
Choice of law clauses — Jurisdiction clauses — Limitations on jurisdiction

(p. 17) Historical Development and Current Theories

Private international law as found in England is a substantive part of English law and was, until the last four or five decades, almost entirely the result of judicial decisions; though it is now the case that much of this field of law has been embodied in legislation, some of which is of purely domestic and some of European or international origin. The writings of jurists in other countries have influenced its growth to a considerable extent, especially through those doctrines that have found acceptance on the Continent. Twentieth-century analyses of the basis of the subject, particularly those carried out in the USA, have also been of influence. Most recently, English private international law has been reshaped through the impact of European Union law. It is difficult to study the subject without at any rate a slight acquaintance with the historical development of the earlier and current trends of thought. It is proposed, therefore, to start by giving a short sketch of the historical development of this branch of law1 in England,2 before moving on to look briefly at the varied approaches to the subject in the twentieth and early twenty-first centuries.

1.  Development of English Private International Law

(a)  Early history

Given that private international law issues had exercised the minds of civil lawyers for centuries, and given the growth of English activity as a trading nation, it seems at first sight surprising that English lawyers did not find it necessary to deal with choice of law problems until a couple of centuries ago. This, however, was the case and it was only in the eighteenth century that an awareness of the problems developed. Blackstone did not mention them and it was the middle of the nineteenth century before an English treatise on private international law was written, by (p. 18) Westlake. Sack has traced this tardiness of development to the special features of the common law and to the English system of administration of justice.3 His explanation in brief is as follows.

The intra-national conflicts, that had long been inevitable on the Continent owing to the existence of different legal systems within the territory of a single nation, could not arise in England after the whole country had been brought under the sway of a single common law. International conflicts were precluded by the rule, established at an early date, that the common law courts were unable to entertain foreign causes. This rule was the necessary result of the practice by which the members of the jury were summoned from the place where the operative facts had occurred, since their function was to decide according to their knowledge of the facts. The sheriff could scarcely summon a jury from a foreign country in which the dispute between the parties had arisen. It is true that special courts were set up to deal with cases that might contain foreign elements. The King established courts to deal with complaints made by foreigners whom he had invited to England and who were, therefore, entitled to his protection. The staple courts and the piepowder courts decided mercantile disputes. But in each of these cases the law administered was the law merchant which, at any rate in theory, was regarded as a universally binding system. There was no question of applying a foreign law at variance with the law of England.

When English traders began to extend their commercial activities beyond the seas, it was inevitable that they would occasionally suffer from this inability to obtain redress in respect of transactions effected abroad. A remedy ultimately became available to them in the Court of Admiralty, which extended its jurisdiction to foreign causes as early as the middle of the fourteenth century. By the middle of the sixteenth century it was competent to try disputes arising out of mercantile dealings abroad.4 Again, however, there was no question of choice of law, for the court dispensed the general law maritime or, in cases of purely commercial matters, the general law merchant.5

By the end of the sixteenth century the common law courts had begun to compete for this jurisdiction. The technical difficulty that formerly stood in their way had disappeared, for the jury relied no longer on its own knowledge but on the testimony of witnesses. The initial step was to deal with “mixed” cases, ie those in which some of the operative facts occurred in England, others abroad, as, for example, where the defendant failed to perform in Spain a charter-party that had been made in England.6 The final step, that of trying cases connected solely with a foreign country, was facilitated by the new division of actions into local and transitory. In transitory actions, ie where the cause of action might have arisen anywhere, there was no necessity to summon the jury from one particular neighbourhood. The plaintiff could sue the defendant where he was to be found, and could lay the venue (ie the place from which the jury was summoned) where he liked. By Coke’s time it was settled that the courts at Westminster could entertain all actions that were of a transitory nature, such as actions for breach of contract or on bills of exchange, notwithstanding that the relevant facts were connected with a foreign country.7

Thus the stage was reached at which it should have been necessary to deal with the familiar problem of choice of law. But in the case of mercantile disputes, which must have formed the bulk of those brought to court, the problem was avoided for many generations, since such disputes were decided according to the general law merchant common to European nations. By the nineteenth century, when the international nature of this law had ceased and it had been incorporated as one (p. 19) of the municipal branches of English law, the modern doctrines of private international law had already taken root in England.8 Moreover, although the common law courts had expressed their willingness to take cognisance of foreign law, they were reluctant to entertain actions in which this would be necessary.9 When the necessity became pressing, their first reaction was to require foreign cases to be tried by the appropriate court abroad, and to accompany this with a readiness to enforce the foreign judgment in England. This recognition of foreign judgments, which dates at least from 1607,10 has never involved a reference to the foreign municipal law. All the English courts have ever done in this connection is to inquire whether the foreign court had jurisdiction in the international sense and whether its judgment was final.11

(b)  Later development

The growth of the British Empire inevitably led to increased links between British subjects owing obedience to a variety of laws, and consequently to an increase in the number of disputes that required, if justice were to be done, a reference to something more than the common law of England. Yet the emergence of anything approaching a connected system of private international law proved to be a slow and laborious process.

The first hesitant steps are to be seen in Robinson v Bland12 in 1760. This involved the question, which was discussed but not decided, whether a contract valid by the law of France where it was made, though void by English law, could be sued on in England.

The plaintiff had lent £300 to X in Paris, which X immediately lost to the plaintiff by gaming, together with an additional £372. X gave the plaintiff a bill of exchange payable in England for the whole amount. It was found that in France “money lost at play between gentlemen may be recovered as a debt of honour before the Marshals of France, who can enforce obedience to their sentences by imprisonment”.13 After the death of X the plaintiff brought assumpsit against his administrator on three counts: on the bill of exchange, for money lent, and for money had and received. It was held that the bill of exchange was void and that no action lay for the recovery of the money won at play. The plaintiff, however, was held entitled to recover on the loan.

The reason for the decision given by two of the three judges was that the laws of France and of England were the same on all these points, and that therefore it was unnecessary to consider which law would apply had there been a difference between them. The judges, however, expressed their opinions on the question. Wilmot J considered it “a great question”, but inclined to the belief that a claim contrary to public policy could not be pursued in England. Denison J felt that English law would govern since the plaintiff had chosen an English forum. It was left to Lord Mansfield to give a more modern flavour to the discussion.

The general rule, established ex comitate et jure gentium, is that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. But this rule admits of an exception when the parties at the time of making the contract had a view to a different kingdom.14

He amplified his remark as to the exception in these words: “The law of the place can never be the rule, where the transaction is entered into with an express view to the law of another (p. 20) country, as the rule by which it is to be governed.”15 Although this was the first mention of the doctrine that the law to govern a contract is the law intended by the parties, what is more noteworthy about the decision is that as late as 1760 the rules on so important a matter were completely unsettled.

In 1775 in Mostyn v Fabrigas,16 Lord Mansfield also adumbrated part of the rule that governed liability in tort until very recently,17 though it was not finally settled until 1869.18 He laid down that what was a justification by the law of the place of the tort could be pleaded as a defence to an action in England. Other principles suggested or established in the eighteenth century were that the law of the place of celebration governs the formal validity of a marriage,19 that movables are subject to the law of the domicile of the owner for the purpose of succession20 and bankruptcy distribution,21 and that actions relating to foreign immovables are not sustainable in England.22 It was not, however, until nearly the close of the century that a clear acknowledgment was made of the duty of English courts to give effect to foreign laws. It was made, once again, by Lord Mansfield.

Every action here must be tried by the law of England, but the law of England says that in a variety of circumstances, with regard to contracts legally made abroad, the laws of the country where the cause of action arose shall govern.23

Thus the eighteenth century represents the embryonic period of private international law, a period which extended to at least the middle of the next century. As late as 1825, Best CJ felt justified in remarking that “these questions of international law do not often occur”,24 and though the era of development was at hand, a considerable time had yet to pass before the main rules were determined. Thus, although rules to govern contracts, torts and legitimation were laid down in 1865, 1869 and 1881 respectively, it was not until 1895 that the dependence of divorce jurisdiction on domicile was established. Such matters as capacity to marry, choice of law in nullity and legitimacy are still unsettled. The formative period is not yet at an end.25 There are still transactions and events common in daily life that are governed by comparatively ancient decisions, and there are others on which the decisions are so hesitating and vacillating that it is difficult to extract the governing principle with assurance. An important fact, and one that should never be overlooked either by the student or the practitioner, is that many of the older decisions are faulty and dangerous guides, and especially so when the point at issue has been the subject of more recent adjudication. Moreover, the number of decisions on choice of law issues is still relatively small26 in comparison with the case law that surrounds such topics as contracts and torts. Indeed, this general state of the authorities, coupled with the movement in favour of unification by conventions,27 the establishment of (p. 21) the Law Commissions,28 and Europeanisation of the subject area29 has led in recent years to increasing legislative intervention in the field of private international law.30

2.  Modern Theories and Developments31

The development of, and theoretical interest in, private international law did not end with the nineteenth century and more recent developments must now briefly be surveyed. Whilst the early theoretical development of the subject was very much a task undertaken by civil lawyers,32 in the twentieth century the mantle of theoretical analysis passed to the common lawyers and, in particular, to theorists in the USA. Much of the most recent developments, however, have been occurring in Europe and have been caused by the Europeanisation of the subject area.

(a)  Theory of acquired rights

The theory of vested or acquired rights33 originated with the Dutch jurist Huber,34 but it was elaborated in the early twentieth century by common lawyers; by Dicey35 in England and by Beale36 in the USA. This theory is based on the principle of territoriality. A judge cannot directly recognise or sanction foreign laws nor can he directly enforce foreign judgments, for it is his own territorial law which must exclusively govern all cases that require his decision. The administration of private international law, however, raises no exception to the principle of territoriality, for what the judge does is to protect rights that have already been acquired by a claimant under a foreign law or a foreign judgment. Extra-territorial effect is thus given, not to the foreign law itself, but merely to the rights that it has created.37

Support for this theory is claimed from the judgment of Sir William Scott in Dalrymple v Dalrymple,38 where the question at issue was whether Miss Gordon was the wife of Mr Dalrymple. Sir William Scott said:

The cause being entertained in an English court it must be adjudicated according to the principles of English law applicable to such a case . . . the validity of Miss Gordon’s marriage (p. 22) rights must be tried by reference to the law of the country where, if they exist at all, they had their origin.39

This theory of acquired rights receives scant support at the present day and it has, indeed, been devastatingly criticised.40 It no doubt stresses one of the principal objects of private international law, for, as we have already seen, one of the elementary duties of a civilised court is impartially to protect existing rights even though they originated abroad. Nevertheless, it must be observed that to protect a right is to give effect to the legal system to which it owes its origin, for a right is not a self-evident fact, but a conclusion of law.41 The theory is open to several objections. First, it is advanced in explanation of the difficulty of reconciling the recognition of a foreign law with the general principle that the laws of a sovereign state have force only within its own territorial jurisdiction. But this difficulty is only an imagined one because it assumes too narrow a meaning of the expression “territorial law”, which is not confined to the positive rules that regulate acts and events occurring within the jurisdiction, but includes also rules for the choice of the applicable law.42 English choice of law rules are part of the law of England and when a court, for instance, tests the substantial validity of a contract made by two foreigners in Paris by reference to French law, it applies a rule of English law and it may accurately be described as putting into force part of the territorial law of England.

Secondly, the theory is futile if its supposed objective is to indicate what legal system governs each legal relation, for it begs the question and produces a vicious circle. A judge who is merely directed to protect a foreign acquired right is not far advanced on his journey, for he still needs to identify the particular legal system, out of perhaps several possible choices, which is entitled to determine whether acquisition is complete. Such a search is not facilitated by the bald statement that a right once vested is inviolable. Once the appropriate law to govern a case has been determined, the rights that it has vested in the litigant ought certainly to be recognised as far as possible, but that fact can scarcely be called “the foundation of judicial decisions” on private international law.43 As Cook has shown, there are no fundamental and logical principles which infallibly indicate in any given situation what court has jurisdiction and what law is applicable.44

Thirdly, the theory is untrue in fact, since the choice of law rules current in much of the common law world can require the enforcement of a right that is unrecognised, or even repudiated, by the chosen law.45

A French widow, for instance, claims a share of her husband’s English land. This claim raises a question either of succession or of the mutual property rights of husband and wife. If the English judge classifies the issue as one concerned with the mutual property rights of spouses, he must enforce whatever right is granted to a widow by that particular part of French law. But if French law would have classified the case as one of succession, it may well be that the English judge will enforce a right that would not have been admitted in France.

The theory as advocated by Beale is open to a difficulty of a different nature. He insisted that the municipal law of the country under which a right has been acquired must be followed to the exclusion of its choice of law rules. This no doubt is correct as a general principle;46 but (p. 23) if so, the result will frequently be that the right enforced by the court of the forum will not correspond with that recognised by the relevant foreign law. The logic of the vested rights theory requires that the court of the forum shall apply not merely the domestic rules but also the choice of law rules of the legal system under which the right is said to have been acquired. If, for instance, an American citizen were to die intestate domiciled in Italy, some American courts would apply the law of his domicile and would grant to the relatives such rights to the movable property of the deceased as would have been granted to them by the relevant provisions of the Italian Civil Code had the deceased been an Italian with no foreign connections. But Italian private international law, in its insistence that intestacy is governed by the law of the patriality, would deny that the relatives possess any such rights.

Again it was said by Dicey in his lifetime that, “the incidents of a right of a type recognised by English law acquired under the law of any civilised country must be determined in accordance with the law under which the right is acquired”.47 This is not completely true, for the incidents and consequences attached to a foreign right when enforced in England may differ from those recognised in its country of origin. An English court, for instance, may exact maintenance from a husband living in England, although he and his wife are domiciled in a country where no such obligation is recognised.

The theory of vested rights is analytically defective and is inadequate as an explanation of the pattern of rules of private international law. On the other hand, it may have performed a useful role in the development of the subject. As has already been pointed out, the theory stresses one of the primary objectives of private international law. It serves to emphasise the need to find solutions with an international flavour. The notion that a foreign right is vested and as such requires respect, although analytically a fiction, tends to induce the correct psychological background for the formulation of choice of law rules. The fiction of vested rights is a fiction inimical to insular prejudices.

(b)  Local law theory

Another theory is that which has been called the local law theory.48 This was expounded by Walter Wheeler Cook, who differed from earlier jurists with regard to the value of so-called fundamental principles. His method, congenial to English lawyers, was to derive the governing rules, not from the logical reasoning of philosophers and jurists, but by observing what the courts have actually done in dealing with cases involving private international law issues. He stressed that what lawyers investigate in practice is how judges have acted in the past, in order that it may be prophesied how they will probably act in the future. A statement of law is “true”, not because it conforms to an alleged “inherent principle”, but because it represents the past, and therefore the probable future, judicial attitude.

The gist of the local law theory as formulated by Cook is that the court of the forum recognises and enforces a local right, ie one created by its own law. This court applies its own rules to the total exclusion of all foreign rules. But, since it is confronted with a foreign-element case, it does not necessarily apply the rule of the forum that would govern an analogous case purely domestic in character. For reasons of social expedience and practical convenience, it takes into account the laws of the foreign country in question. It creates its own local right, but fashions it as nearly as possible on the law of the country in which the decisive facts have occurred.

(p. 24) Since the court of the forum adopts the view that the chosen law would have taken not of the actual case, but of an equivalent domestic case, it does not necessarily recognise the right that would in fact have been vested in the claimant according to the chosen law. If the court of the chosen law had tried the actual case, it would not have regarded it as a domestic case. Owing to the presence of foreign elements, it would have been guided by its own choice of law rules, and therefore it might well have applied some law other than its own domestic system. Cook sums up the theory in these words:

The forum, when confronted by a case involving foreign elements, always applies its own law to the case, but in doing so adopts and enforces as its own law a rule of decision identical, or at least highly similar though not identical, in scope with a rule of decision found in the system of law in force in another state or country with which some or all of the foreign elements are connected, the rule so selected being in many groups of cases, and subject to the exceptions to be noted later, the rule of decision which the given foreign state or country would apply, not to the very group of facts now before the court of the forum, but to a similar but purely domestic group of facts involving for the foreign court no foreign element. . . . The forum thus enforces, not a foreign right, but a right created by its own law.49

It is scarcely deniable, however, that this local law theory is little more than what one writer has stigmatised as a sterile truism—sterile because it affords no basis for the systematic development of private international law.50 To remind an English judge, about to try a case containing a foreign element, that whatever decision he gives he must enforce only the law of the forum is a technical quibble that explains nothing and solves nothing. It provides no guidance whatever as to the limits within which he must have regard to the foreign law.

(c)  The American revolution51

Some of the most important theoretical developments of private international law took place in the USA in the second half of the twentieth century. Indeed they have been described as a new American revolution.52 Whilst a variety of ways of tackling choice of law problems has been put forward in the USA, they tend to have a similar basic characteristic—an analysis of the issues arising in a particular case with a concern to devise the appropriate rule for this more narrowly formulated problem as compared with the far more broadly based conventional choice of law rules.53 This analysis of issues in individual cases requires the court to examine the particular substantive rules of law in conflict in the case, to identify the policies at issue and to resolve any conflict so identified by choice of law rules appropriate to that narrowly defined conflict.

In order to examine briefly these developments, we shall have to look first at two general approaches common to most of the “revolutionaries” before looking at the main theoretical approaches put forward.

(p. 25) (i)  Two general approaches

(a)  Rule selection or jurisdiction selection?

English choice of law rules cover a wide variety of matters—such as the rule that the formal validity of a marriage is governed by the law of the place of celebration, that the essential validity of a contract is governed by the law chosen by the parties or by certain other considerations in the absence of choice, or that succession to movables is governed by the law of the testator’s domicile. All these rules, however, have one thing in common. They are, in the terminology of the American writers, “jurisdiction-selecting” rules. They require the court to apply the law of the country chosen by the choice of law rule irrespective of the content of the particular rule of law thereby selected. This is to be compared with the technique of “rule-selection” favoured in the USA, which emphasises a choice between different substantive rules of law which in turn leads to a balancing of the respective “interests” involved in the application of a particular substantive rule of one legal system rather than a different substantive rule of another legal system.

The choice between a jurisdiction-selecting or a rule-selecting approach has been put thus:

Should a court in dealing with a claim that a foreign law is applicable to the case before it or to an issue in that case choose between its own and the foreign legal system or, instead, choose between its own rule and the foreign rule?54

Rule-selection is preferred by the American writers and in some fields by the courts, but such an approach can take a variety of forms. Before attempting to outline some of these forms, it is necessary to examine a further general issue which may eradicate the need for any choice at all, namely the question whether there is a true or false conflict.

(b)  True and false conflicts55

A jurisdiction-selecting approach to choice of law leads to the application of the rules of law of the chosen jurisdiction irrespective of which of the rules of substantive law of two or more apparently involved legal systems is to be applied. There is a basic assumption here that rules from two or more legal systems do have a claim to be applied. If they do not, and on analysis only one has such a claim, there is no choice to be made. This latter situation has been described as a “false conflict”;56 the former case where more than one set of rules has a legitimate claim to application, thereby necessitating the development of rules for choosing between them, is a “true conflict”. There is a third possibility,57 which has been described as a “no-interest” case,58 where a conflict of decision may result from the application of the laws of the different states, but where neither state has an interest in its law being applied.59

The classic “no interest” case is one in which the plaintiff’s state has a law favourable to the defendant and the defendant’s state has a law favourable to the plaintiff . . .. The plaintiff’s state has no interest in protecting the defendant who comes from another state and the defendant’s state has no reason to give the plaintiff more compensation than he would get under the law of his own state.60

(p. 26) It will be apparent that in this whole area a two-stage analysis is involved. First, does the case concern a true or a false conflict? This question is to be answered by a proper interpretation of the rules in issue in the light of their respective purposes and the facts of the case.61 Indeed, it is said that if, after such a test has been applied, a true conflict is seen to exist, the test should be applied more carefully again in the hope that on truer analysis the conflict will prove to be false and the need for choice of law rules that much the less.62

If, despite re-analysis, the choice of law problem still remains in the form of a “true” conflict, the next stage of analysis is reached, ie the selection between the various rules which have a legitimate claim to application. On this, American writers have put forward a variety of rule-selection techniques, which we must now examine.

(ii)  Rule-selection techniques

(a)  Governmental interest analysis

Currie, described as the father63 of the governmental interest analysis approach, proposed64 that the court should examine the policies expressed in the rules of substantive law in apparent conflict and assess the interests of the respective states in having the policies embodied in their rules applied in a fact situation not restricted to the one state. If, on careful assessment, the rules, policies and interests are found to be in conflict, a “true” conflict, then the law of the forum is to be applied. This is so notwithstanding the fact that the other state has an interest in the application of its own contrary policy.

The main role of interest analysis is to determine whether the conflict is true or false, but applying the law of the forum, without more, to a true conflict is, in truth, an abandonment of the internationalism of private international law.65 Furthermore, the technique of interest analysis, particularly in a country like England where choice of law problems are more likely to be international than inter-state,66 suffers from major defects.67 The weighing of interests is limited to the identification of whether the conflict is true or false; it plays no part at the crucial stage of determining the applicable law. The latter is as important as the former. Furthermore, any weighing of interests is limited to state interests. This may be thought legitimate in the field of public international law; but in the context of private international law, the court should seek “conflicts justice”68 and this requires due regard to be paid to the interests of the parties in the individual case.

Another disadvantage of governmental interest analysis is that it assumes a willingness and ability on the part of judges to identify and to evaluate the policies and interests expressed in the substantive laws under review. There are real difficulties here. How is the court to determine the policy underpinning a statutory rule;69 and is the policy evident at the time (p. 27) the statute was passed still one that justifies its retention? There are similar problems caused by the passage of time in relation to judge-made law and the policies justifying the rule may never have been clearly articulated. The problems are compounded when the policy assessment has to be made in relation to the law of a foreign country whose legal system and law-making processes are very different from ours.70 It is no answer to these difficulties to say that American courts have, mainly in the areas of tort and contract, applied interest analysis for several decades. Most of the relevant cases have involved inter-state rather than international conflicts71 and, more often than not, no real attempt has been made to discover the policy basis of the rules in conflict. There tends to be merely a statement, without evidence, as to what the policies of the rules must be—very much a forum oriented assessment.

There are further difficulties with this approach. Not only is it inherently uncertain, but it also normally requires a judicial determination of where the balance of interests lies. This inhibits lawyers from giving advice and it suggests (as has proved to be the case) that the approach may best be used in areas such as the law of tort where “the function of the law is substantially pathological and the view of the court is essentially retrospective”.72 It has been little used in family law and in property matters where the law’s function may more often be prospective, involving advice as to the future. A final disadvantage concerns what Currie described as “the disinterested third State”.73 This is the case where the interests of three states have to be assessed, where the forum has no interest in its law being applied but where there is a true conflict between the interests of the two other states. The Currie analysis breaks down; there is no merit in applying the law of the forum and no rule for deciding which other law to apply.

(b)  Comparative impairment

There is a body of opinion in the USA which, though prepared to go much of the way with Currie’s interest analysis and the identification, and thus elimination, of false conflicts, is not willing to accept that the law of the forum automatically be applied in cases of true conflicts. In contrast to Currie’s views, such opinion believes that courts are able to and ought to weigh the conflicting interests. The criterion for such evaluation is suggested as that of “comparative impairment”. This approach, first propounded in 1963 by Baxter74 and since supported by the Supreme Court of California,75 requires the court to determine which of the conflicting states’ interests would be more impaired if its policy were subordinated to the policy of the other state. The essence of the comparative impairment approach has been summed up thus:

the comparative impairment approach to the resolution of true conflicts attempts to determine the relative commitment of the respective states to the laws involved. The approach incorporates several factors for consideration: the history and current status of the states’ laws: the function and purpose of those laws.76

Though this approach is open to all the objections that may be made against any rule-selection approach, with its underlying premise that the identification of governmental interests or state policies implicit in the conflicting rules is easy to accomplish, it does meet some (p. 28) of the criticisms of Currie’s mechanistic forum-oriented approach and of his failure to solve the problem of the disinterested third state.

(c)  Principles of preference

As long ago as 1933 Cavers advocated77 the abandonment of a jurisdiction-selecting approach in favour of rule-selection. Later, he developed78 his choice of law rules as “principles of preference”. He and Currie have much in common. They were both supporters of rule-selection: both would utilise this analysis to identify cases of true and false conflict. Resolution of false conflicts is easy—there is no conflict. The parting of the ways comes with true conflicts. Cavers did not accept “Currie’s stern rejection of all choice-of-law rules”.79 Instead, he sought to develop choice of law rules for the resolution of true conflicts. Accepting that the detailed development of rule-selection rules may be a long process, he suggested that the courts should develop broad principles of preference:

The court is to seek a rule for choice of law or a principle of preference which would either reflect relevant multistate policies or provide the basis for a reasonable accommodation of the laws’ conflicting purposes. A principle of preference would be applicable to all cases having the same general pattern of law and fact and would identify a preferred result on choice-of-law grounds. If the case could not thus be generalised, the court should state the reasons leading it to prefer one result to the other on choice-of-law grounds. In either case it should apply the law leading to the preferred result.80

This is the gradualist approach. It involves the introduction of broad principles of preference, worked out by Cavers in some fields, namely torts, contracts and conveyances, but not developed at all in others. The main objective is to do justice between the parties and, from these just principles, it is envisaged that more specific detailed rules will emerge as a result of judicial development.81

The main appeal of Cavers’ approach is that it attempts a solution to the true conflict, but in the process it attracts all the criticisms of any rule selection approach.82 It is still necessary to identify and evaluate state policies or interests. Uncertainty and unpredictability remain, even with principles of preference. This is because their evolution is seen in terms of judicial development, and choice of law rules based on principles of such detail as is necessary to accommodate so many varied policies will take a very long time to develop. This may be easier in a federal state, as Cavers himself admitted,83 than with the type of international conflicts with which English courts tend to be faced.

(d)  Interpretation of forum policy

Criticism of both the traditional jurisdiction-selecting approaches and more recent governmental interests analysis is found in the writings of Ehrenzweig.84 In his view, a court, in searching for the appropriate choice of law rule, should give pre-eminence to the law of the (p. 29) forum—an approach described as “interpretation of forum policy”.85 He maintained that, in practice, the courts have applied the law of the forum as the general rule, and suggested that foreign law was not to be regarded as “applicable” to govern a case, merely that it should be “tolerated”.86 Reference to a foreign law is only to be made in exceptional circumstances where application of the law of the forum would be unfair to the parties or contrary to their intentions. Application of the law of the forum has the obvious advantages for all concerned in litigation that it is easy and cheap to apply; but it depends on knowing what the forum is going to be. Ehrenzweig’s approach is a recipe for “forum-shopping”, with the claimant seeking to sue in the country with the law most favourable to him. It is hardly satisfactory that the merits of his approach to choice of law issues depend on the availability of controls over jurisdictional rules. Furthermore, a forum-oriented approach cannot provide choice of law decisions in the absence of litigation.87

(e)  Choice of law factors

There are two, fairly similar, American approaches to choice of law problems under which the applicable law is determined by reference to a variety of choice of law factors. The first of these is the American Law Institute’s Second Restatement of the Conflict of Laws, which adopts as its basic criterion for choice of law the application of the law of the state which has the most significant relationship to the particular issue under principles laid down in paragraph 6 of the Restatement. This requires the court to follow a statutory directive of its own state on choice of law but, in the absence of such a directive, the factors relevant to the choice of the applicable law include:

  1. (a)  the needs of the inter-state and international systems;

  2. (b)  the relevant policies of the forum;

  3. (c)  the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue;

  4. (d)  the protection of justified expectations;

  5. (e)  the basic policies underlying the particular field of law;

  6. (f)  certainty, predictability and uniformity of result; and

  7. (g)  ease in the determination and application of the law to be applied.

The most significant relationship test, with these choice influencing factors, is applied to a whole variety of conflicts issues, ranging from contract and tort to marriage and property.

Reese, the Reporter of the Second Restatement and architect of this approach,88 would describe the test provided in the Restatement as an “approach” to choice of law and not as providing in itself rules for the solution of specific choice of law problems.89 Nevertheless, it is perceived as a means to the end of development of clear, precise rules:

I believe that one ultimate goal, be it ever so distant, should be the development of hard-and-fast rules of choice of law. I believe that in many instances these rules should be directed, at least initially, at a particular issue. And I believe that in the development of these rules consideration should be given to the basic objectives of choice of law, to the relevant local law rules of the potentially interested states and, of course, to the contacts of the parties and of the occurrence with these states.90

(p. 30) The attraction of this approach is that, in reality, it attempts to have the best of all worlds. It provides specific choice of law rules, unlike the forum-oriented approach of Currie and Ehrenzweig. It does not require an analysis into true and false conflicts with its difficulties of determining in detail the interests of the states whose laws are competing, or the policies underlying the creation or retention of such rules; yet it provides some consolation, in the reference to “the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue”, to those who are supporters of interest analysis. It acknowledges the desirability of certainty and ease of application of the law, surely very necessary elements in the formulation of new rules of law. It requires a new look at the old choice of law rules, and encourages that new look to be issue-oriented rather than aimed at whole areas of the law such as “contract”, “tort” or “marriage”. Indeed, it is both jurisdiction selecting and rule selecting at the same time.91 The purpose of indicating that regard should be had to the policies of the interested states and their relative interests in the determination of the particular issue must be in order to aid the selection of the more appropriately applicable rule—a form of interest analysis or rule-selection. In giving consideration, as Reese does in the passage just quoted, to the contacts of the parties and of the occurrence with the interested states, Reese relies on a “grouping of contacts” approach which is predominantly jurisdiction-selecting.

Although the Second Restatement has had a significant impact on the decision of tort cases in the USA involving choice of law issues,92 it does not escape criticisms,93 which are of two main kinds. The first is that “the factors often point in different directions and carry in themselves no measure of their significance”.94 You cannot point in rule selection and jurisdiction selection directions at one and the same time. Secondly, it is hard to be certain as to the purpose of the Restatement’s choice influencing factors. They read like an exhortation to a law reformer, as criteria to be weighed in formulating new rules. Their effectiveness depends both on litigation and on judicial creativity, on a willingness of judges to cast aside old rules in a search for better ones, despite any uncertainty that may bring. It is not surprising that their main impact has been in the field of choice of law in tort, where the role of the law is far more retrospective than prospective.

The second approach involving choice of law factors is that of Leflar who has advocated that courts resolve choice of law issues by reference to five “choice-influencing considerations”. In no particular order of priority, he lists them95 as:

  1. (a)  Predictability of result;

  2. (b)  Maintenance of interstate and international order;

  3. (c)  Simplification of the judicial task;

  4. (d)  Advancement of the forum’s governmental interests;

  5. (e)  Application of the better rule of law.

All but the last of these essentially mirror factors to be found in the list in the Second Restatement. They have the same attractions and are subject to the same criticisms; but the (p. 31) fifth factor, that of “the better rule of law”, calls for separate comment. It is a factor which has proved attractive to the judiciary, though one which is more likely to lead to a court concluding that its own, the forum’s, rule of law is the better rule.96 Nevertheless, it is a dangerous factor to use in the choice of law process because it confuses the issue of the reform of the substantive law of one country with that of choosing the most appropriate law to govern a dispute with links with two or more countries. It is certainly not the task of a judge in one country to try to reform the law in another.97

(iii)  Impact of the revolution

Whilst the direct influence of these American developments of private international law theory is essentially limited to the USA,98 writers from, for example, France,99 Italy,100 Germany101 and Switzerland102 have welcomed the developments as, at least, providing an impetus for reappraisal of the civil lawyer’s103 approach to choice of law problems. At the same time, however, the voices of American critics104 of interest analysis and the like are strong, concerned with many of the criticisms of the “revolution” which have been mentioned earlier. Few, however, are as robust as this:

Conflicts of law has become a veritable playpen for judicial policymakers . . .. [The] courts are saddled with a cumbersome and unwieldy body of conflicts law that creates confusion, uncertainty and inconsistency, as well as complication of the judicial task. The approach has been like that of the misguided physician who treated a case of dandruff with nitric acid, only to discover that the malady would have been remedied with medicated shampoo. Neither the doctor nor the patient need have lost his head.105

In truth, the impact of the new ideas has been limited. Whilst its effects on choice of law have been substantial in the area of tort law,106 and have been significant in the context of contract (p. 32) rules, interest analysis and its progeny have been little discussed in the context of family law107 or property matters and have had little impact on judicial decisions in those fields.

(iv)  Post-revolutionary developments

The decline of American conflicts scholarship, the result of an awareness that the vigour of the American “revolution” has subsided, has been followed by a revival in recent years.108 Interesting developments in conflict of laws thinking, primarily in the USA but also in other countries, have emerged from interdisciplinary interest in this field of law, most importantly from the perspectives of economics, political science and anthropology.

The most important interdisciplinary movement is “law and economics”,109 which, as Ralf Michaels explains, has come up with three broad types of economic model.110 A first set of “private-law” models focus on the interests of individuals as rational actors.111 The goal is either to achieve greater efficiency among individuals or to maximise global social welfare, perceived as the sum of the utilities of all individuals. This type of model favours private ordering, party autonomy and predictable rules. A second set of “international-law” models are also oriented towards efficiency and welfare, but with the focus on the conduct of states as rational agents and the maximisation of their preferences.112 Important considerations are the effectiveness of state policies and cooperation between states. Party autonomy plays a very limited role in this second set of models. “Combined” models combine the previous two, as the focus is on the incentives created by choice-of-law rules for both individuals and states as regulators.113 The novelty of this third set of models lies in the fact that they emphasise regulatory competition between states and the role of party autonomy in incentivising states to pass efficient domestic substantive laws.114 These types of economic model are, of course, ideal types and individual economic models developed by different scholars may fall into more than category.115

Other interdisciplinary approaches of importance for conflict of laws include “law and political science” and “law and anthropology”. The most important modern representative of the former approach is the private international law and global governance movement.116 This (p. 33) movement focuses on the role played by private international law, including that of freedom of choice as a foundational principle of this field, in supporting transnational private ordering, even to an extent that enables transnational private economic actors to effectively escape domestic public policy regulation in a way that harms global collective goods. An important question is whether private international law can, and if so to what extent, be a countervailing force. Another interdisciplinary approach translates insights from legal pluralism, a concept formulated mainly within anthropology, into private international law.117 A major question for conflict of laws is how to deal with non-state normative orders.

Whilst the mentioned approaches incorporate insights from other disciplines into conflict of laws, some scholars have emphasized the virtue of conflict of laws as technique, as an intellectual style,118 and applied a conflict of laws analysis to the problems of delineation of several potentially applicable normative orders that are facing other disciplines such as the fragmentation of public international law119 or the treatment of international law in domestic courts.120

(d)  The European (r)evolution

Whilst most, if not all, private international lawyers would agree that private international law in the European Union has changed considerably in the last several decades as a result of the Europeanisation of the subject area, there is a disagreement over the nature, extent and depth of the change. For some, European Union private international law is undergoing a revolution of its own, very different but equally, if not more, radical in comparison to its American counterpart.121 For others, the developments in the European Union represent a culmination of various evolutionary processes.122

The disagreement largely stems from different conceptions of private international law that the participants in this debate adopt. European “revolutionaries” deal not only with the rules of jurisdiction, choice of law and recognition and enforcement of judgments that are contained in European Union private international law instruments but broaden the concept of private international law to include functional equivalents such as the European Union law principles of mutual recognition and country of origin.123 A justification for this approach is that, ultimately, all of these rules are based on the principle of mutual trust, which is one of (p. 34) the foundational principles of European Union law.124 Moreover, European “revolutionaries” are interested in the way the system created by private international law rules interacts with other legal systems such as human rights law.

Private international law in the European Union is undeniably going through a process of federalization. An ever increasing amount of private international law rules is now contained in European Union legal instruments, mostly regulations and to a lesser extent also in directives (and domestic implementing measures) and primary European Union law.125 But even more important than the move of private international law regulation from the domestic to the European Union level is the fact that the nature and role of private international law rules in the European Union has changed. All European Union private international law instruments are derived from the European Treaties and are based on provisions laying down the competences of the European Union. Consequently, all European Union private international law rules are directly connected to, and influenced by, substantive policies pursued by the European Union. Among those policies, by far the most important is the proper functioning of the internal market;126 but other policies are of importance too, for example, the protection of employees, consumers and the environment.127 This link between European Union private international law and substantive European Union policies means that private international law in the European Union is now an instrument of European integration, which makes this field of law very different from classical private international law that was traditionally perceived as a private, apolitical and value neutral discipline. Another important consequence of this process of federalisation pertains to the interests pursued by European Union private international law rules. The rules of classical private international law, conceived of as a branch of domestic law and, therefore, a matter of domestic regulation, pursued purely domestic interests. Admittedly, some private international law matters were dealt with in international treaties,128 but the adoption of treaties was within the discretion of individual states which would accede to a treaty only when it was in their best interest. The conferral on the European Union of competence over private international law matters means that European Union private international law rules do not have to be, and are frequently not, in line with the interests of individual Member States. European Union private international law rules pursue European interests. These rules perform an important function of distributing the regulatory, ie jurisdictional, legislative and enforcement authority in civil and commercial matters among the Member States.129 In doing so, European Union private international law is an important supplement of the key European Union law principles of subsidiarity, proportionality and effectiveness and an important tool for the management of legal diversity that exists in the European Union.130

(p. 35) Private international law in the European Union is also undergoing a related process of constitutionalisation.131 The described process of federalization itself represents a form of constitutionalisation, in the sense that European Union private international law is taking on a “public” role of distributing regulatory authority in a quasi-federal context. Apart from the rules of jurisdiction, choice of law and recognition and enforcement of judgments contained in European Union private international law instruments, this distributive function is also performed by the principles of mutual recognition and country of origin.132 It is this interplay between, on the one hand, the rules of jurisdiction, choice of law and recognition and enforcement of judgments and, on the other, the rules of primary and secondary European Union law on the free movement of goods, services, people and capital that is one of the defining features of European Union private international law. But there is also another, arguably deeper, process of constitutionalisation of private international law taking place in the European Union. The rules of jurisdiction, choice of law and recognition and enforcement of judgments are based on Article 81 of the Treaty on the Functioning of the European Union, which provides that such rules can be adopted by the European Parliament and the European Council “particularly when necessary for the proper functioning of the internal market”. Similarly, the Treaty provisions on the fundamental economic freedoms and the related case-law of the CJEU pursue economic interests of opening up the internal market. A countervailing force to the economic logic of European Union private international law is to be found in the areas of non-discrimination and human rights, which have recently been given a strong impetus through the introduction of citizenship of the European Union and by granting the Charter of Fundamental Rights of the European Union the same legal value as the European Treaties. Human rights, and in particular the right to a fair trial, have had an important role in the field of recognition and enforcement of judgments and have arguably contributed to the emergence of a European legal culture.133 Human rights and the principle of non-discrimination, which are inherent in European Union citizenship, have had an even greater impact and have led in the area of family law and personal status to the setting aside of choice-of-law rules that interfered with the recognition and protection of personal identity.134 These processes of constitutionalisation of European Union private international law through federalisation and interplay with human rights and the principle of non-discrimination put this legal discipline right in the middle of modern developments and debates concerning the identity and responsibilities of the European Union.

These processes of federalization and constitutionalisation inevitably lead to a different treatment of two categories of private international law situation: those that are connected solely (p. 36) with the European Union and those that are connected with one or more third states. Intra-EU conflicts come in three different forms: “vertical” conflicts between European Union law and the Member States’ domestic laws, “horizontal” conflicts that arise in horizontal relationships between private actors, and “diagonal” conflicts that arise in situations where the European Union is competent to regulate one aspect of the private international law situation (eg fundamental economic freedoms) and the Member States remain competent to regulate another aspect (eg areas that remain within the exclusive competence of individual Member States such as industrial action).135 Intra-EU conflicts are resolved not only by the application of the rules of jurisdiction, choice of law and recognition and enforcement of judgments, but also by the application of the European Union law principles of supremacy of European Union law, mutual recognition and country of origin. Furthermore, in intra-EU conflicts party autonomy is used as a tool of regulatory competition, and the doctrines of public policy and mandatory rules play a limited role. With regard to external conflicts,136 European Union private international law has developed somewhat different techniques that are aimed at safeguarding the European Union interests and values from non-European elements. This is achieved by the application of European Union law whenever a particular private international law situation has a sufficient connection with the European Union.137 The differentiation between the different techniques applicable in intra-EU and external conflicts represents yet another defining feature of European Union private international law.

One may disagree with the thesis that these developments amount to a revolution in European Union private international law, but it cannot be disputed that the nature, extent and depth of the changes in this field in the last several decades has been significant. Although this book adopts a traditional view of private international law and regards it as encompassing rules of jurisdiction, choice of law and recognition and enforcement of judgments, whilst leaving aside the principles of mutual recognition and country of origin, as well as the detail of the impact of human rights and other legal systems on private international law, to specialized works,138 it must be acknowledged that an understanding of the context in which private international law in England today operates is crucial to a proper understanding of this field of law. This conclusion will remain valid even after the Brexit, the forthcoming withdrawal of the United Kingdom from the European Union, whose precise shape is hard to predict at this stage,139 at least until the legislation in this field of law that is derived from European Union law is repealed and replaced.

(e)  The English approach

What, in the light of the theories and approaches discussed above, is the theoretical or doctrinal basis of English private international law? In considering its nature do we find ourselves perplexed by the enigma that apparently it subordinates the sovereignty of the law of the forum to that of a foreign country? To answer this last question first, the position surely is that for the forum of its own volition to give effect to a foreign law or to enforce a right that is the creature of that law involves no abdication of sovereignty. The forum’s recognition of the foreign right is not based on an admission that it has any force in itself, but on the forum’s realisation that its own positive rules of law, though in its view (p. 37) best suited for matters solely connected with its own country, are not always the right and proper rules for the regulation of matters that contain some foreign element. It therefore provides its own special rules for dealing with such cases—rules which specify when its courts shall be competent to try a foreign-element case, and which indicate the particular legal system that shall guide the courts in their exercise of this jurisdiction. These rules are as much part of its own territorial law as those that regulate the conveyance of land in its own country.

But on what principle are the rules constructed? Is there one overriding principle from which they can all be deduced? Must they conform to a single doctrine? Are there certain maxims or axioms by reference to which the correct solution of all the diverse cases that arise in practice can be discovered? Do our difficulties disappear if we are reminded that all laws are personal, or that they are all real, or that every right duly established under the law of a foreign country must in general be sanctioned by an English judge? Clearly, such theoretical analyses are unsupported in English private international law. They are alien to the common law tradition and if offered in argument would be a matter of surprise to an English judge. The instinct of the English lawyer is to test a proposed rule by its practical bearing on normal human activities and expectations. It is by this method that in his opinion the purpose of law, which at bottom is to promote justice and convenience, can best be furthered. He is nothing if not an empiricist and a pragmatist. This is the spirit in which our choice of law rules have been conceived until the stage has been reached at which it is possible to extract a general principle from the existing stream of authority. In so doing, regard will be had to the policy objectives of choice of law rules. This task is undertaken not, as in the USA,140 to provide individual choice of law solutions for each case that arises, but in order to develop clear rules properly applicable to the generality of cases in a particular field.

There is no sacred principle that pervades all decisions, but when the circumstances indicate that the internal law of a foreign country will provide a solution more just, more convenient and more in accord with the expectations of the parties than the internal law of England, the English judge does not hesitate to give effect to the foreign rules. What particular foreign law shall be chosen depends on different considerations in each legal category. Neither justice nor convenience is promoted by rigid adherence to any one principle; it is preferable that the various principles should fit the needs of the different legal relations, and should harmonise with the social, legal and economic traditions of England. Thus, for instance, the law to govern capacity will vary according to whether the matter under consideration is a commercial contract, a contract of marriage or a disposition of property. Again, the law to govern the essential validity of a contract is, in the absence of choice, determined by a number of rules and the possibility of departing from them in favour of the country with which the contract is manifestly more closely connected. All objective factors are to be considered and weighed in the course of this exercise. Private international law is no more an exact science than is any other part of the law of England; it is not scientifically founded on the reasoning of jurists, but it is beaten out on the anvil of experience.

In the text that follows regard will be had, where appropriate, to the developments in European Union private international law, which, as has been argued, envisages a more administrative role for the judges of European Union Member States.141(p. 38)

Footnotes:

1  For an account of the historical development of the subject more generally since Roman times and with particular emphasis on developments in Continental Europe, see the 12th edn of this book (1992), pp 15–23.

2  The only separate work in English of an historical nature is Sack, Conflicts of Laws in the History of the English Law, in Law: A Century of Progress 1835–1935 (1937), Vol III, pp 342–454. Beale gives a full and valuable outline of the general history of the subject in Conflict of Laws (1935), pp 1881–975. See also Wolff, pp 19–51; Westlake, pp 1–22; Yntema (1953) 2 AJCL 297; de Nova (1966) II Hague Recueil 435, 441–77; Lipstein (1972) I Hague Recueil 97, 104–66; Mills (2006) 55 ICLQ 1; and see Kegel (1964) II Hague Recueil 91, 103–11; Juenger (1985) IV Hague Recueil 119, 136–69.

3  See Sack, Conflicts of Laws in the History of English Law, in Law: A Century of Progress, 1835–1935 (1937), Vol III, pp 342–454; and see Anton (1956) 5 ICLQ 534; Nygh (1961) 1 U Tas LR 555; (1964) 2 U Tas LR 28.

4  Sack, ibid, pp 353–5.

5  Ibid, p 355.

6  Ibid, pp 359–60.

7  Ibid, pp 370–1.

8  Ibid, pp 375–7.

9  Ibid, p 381.

10  Wier’s Case (1607) 1 Roll Abr 530 K 12.

11  The cases such as Penn v Baltimore (1750) 1 Ves Sen 444, 27 ER 1132, in which equity exercises personal jurisdiction in respect of acts occurring abroad, do not involve the application of foreign law; infra, p 486 et seq.

12  (1760) 1 Wm Bl 234, 2 Burr 1077.

13  Wilmot J described it as “this wild, illegal, fantastical Court of Honour”! 2 Burr 1077 at 1083.

14  1 Wm Bl 234 at 258–9.

15  2 Burr 1077 at 1078.

16  (1774) 1 Cowp 161, 98 ER 1021.

17  Infra, pp 777–8.

18  Phillips v Eyre (1870) LR 6 QB 1, infra, p 777 et seq.

19  Scrimshire v Scrimshire (1752) 2 Hag Con 395, 161 ER 782.

20  Pipon v Pipon (1744) Amb 25, 27 ER 14.

21  Solomons v Ross (1764) 1 Hy Bl 131 n.

22  Shelling v Farmer (1725) 1 Stra 646, 93 ER 756.

23  Holman v Johnson (1775) 1 Cowp 341, 98 ER 1120. Lord Stowell spoke to the same effect in Dalrymple v Dalrymple (1811) 2 Hag Con 54, 161 ER 665.

24  Arnott v Redfern (1825) 2 Car & P 88 at 90, 172 ER 40.

25  See Fentiman, in Krawietz and Summers (eds), Prescriptive Formality and Normative Rationality in Modern Legal Systems (1994) 443.

26  One area where there is a substantial number of reported decisions is that relating to jurisdictional disputes, infra, Chapters 11–14.

27  Supra, pp 10–11.

28  See, eg, Domicile and Matrimonial Proceedings Act 1973; Matrimonial and Family Proceedings Act 1984, Part III; Foreign Limitation Periods Act 1984; Family Law Act 1986; Private International Law (Miscellaneous Provisions) Act 1995.

29  Supra, pp 11–13.

30  See North (1982) 46 RabelsZ 490, 500 et seq; Reese (1987) 35 AJCL 395; North (2001) 50 ICLQ 477; Forsyth (2005) 1 J Priv Int L 93.

31  See also Anton, Chapter 2; Nygh’s Conflict of Laws in Australia (2014), Chapter 12; Morris, Chapter 2; Mills (2013) 23 Duke J Comp and Int L 445.

32  Civil lawyers’ energies have more recently been directed to the formulation of new or replacement codes. Many of the recent national private international law codes have been reported in the Yearbook of Private International Law. See generally on codification, Jayme (1982) IV Hague Recueil 9; a symposium in (1990) 38 AJCL 423 et seq; Symeonides, in Brown and Snyder (eds), General Reports of the XVIIIth Congress of the International Academy of Comparative Law (2012) 167; Symeonides, Codifying Choice of Law Around the World: An International Comparative Analysis (2014).

33  See Morris, para 2-006.

34  For translations of the title De Conflictu Legum, and for accounts of Huber’s influence, see Lorenzen, Selected Articles on the Conflict of Laws (1947), Chapter 6; Llewelfryn Davies (1937) 18 BYBIL 49; and see Lipstein (1972) I Hague Recueil 97, 121–31.

35  Conflict of Laws (1932) 5th edn, pp 17, 43; see Nadelmann, Conflict of Laws: International and Interstate (1972), pp 14–18; Lipstein [1972b] CLJ 67–71.

36  Conflict of Laws (1935), pp 1967–9.

37  Holland, Jurisprudence (1900) 9th edn, pp 398–9; Re Askew [1930] 2 Ch 259 at 267.

38  (1811) 2 Hag Con 54, 161 ER 665.

39  Ibid, at 58.

40  Arminjon (1933) II Hague Recueil 1; Cook, Logical and Legal Bases of the Conflict of Laws (1942), passim; Carswell (1959) 8 ICLQ 268; Kahn-Freund (1974) III Hague Recueil 139, 464–5.

41  Carswell (1959) 8 ICLQ 268, 285.

42  Arminjon (1933) II Hague Recueil 1, 27; see also Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341 at 343, 98 ER 1120.

43  Dicey, Conflict of Laws (1932) 5th edn, p 18.

44  Logical and Legal Bases of the Conflict of Laws (1942), pp 18–9.

45  Arminjon (1933) II Hague Recueil 1, 32–3, 47–8.

46  Infra, pp 57 and 69–70.

47  Dicey, Conflict of Laws (1932) 5th edn, p 43, General Principle No V.

48  Cook, especially Chapter I; Lorenzen, Selected Articles on the Conflict of Laws (1947), I; de Sloovère (1928) 41 Harv LR 421; Cheatham (1945) 58 Harv LR 361; Falconbridge (1937) 53 LQR 537, 556; Falconbridge, Essays on the Conflict of Laws (1954) 2nd edn, pp 30–7; Morris, para 2-007.

49  Cook, pp 20–1.

50  Yntema (1953) 2 AJCL 297, 317.

51  See De Boer, Beyond Lex Loci Delicti (1987); Brilmayer, Conflict of Laws: Foundations and Future Directions (1995) 2nd edn; (1995) 252 Hague Recueil 9; Symeonides, The American Choice-of-Law Revolution: Past, Present and Future (2006); Symeonides and Perdue, Cases and Materials on Conflict of Laws: American, Comparative and International (2012) 3rd edn; Hay, Borchers and Symeonides, Conflict of Laws (2010) 5th edn; Symeonides, Choice of Law (2016). Also, from 1987 onwards, Annual Surveys of American Choice-of-Law Cases, cited in Symeonides (2016) 64 AJCL 221 at n 1.

52  See Kegel (1964) II Hague Recueil 91.

53  For a comparison of the two approaches, see Hay (1991) I Hague Recueil 282; Bliesener (1994) 42 AJCL 687.

54  Cavers (1970) III Hague Recueil 75, 122.

55  Pryles (1987) 11 Sydney LR 284.

56  This term covers the case where the laws of the two states are the same or would produce the same result, eg Scheer v Rockne Motors Corpn 68 F 2d 942 (1934) and where the laws are different but only one has an interest in being applied; eg Babcock v Jackson 12 NY 2d 473, 191 NE 2d 279 (1963); Williams v Rawlings Truck Line Inc 357 F 2d 581 (1965). See Danziger v Ford Motor Co 402 F Supp 2d 236 (DDC 2005).

57  For a range of seven possibilities, see Westen (1967) 55 Calif LR 74.

58  Eg Currie, Selected Essays on the Conflict of Laws (1963), pp 152–6.

59  Hurtado v Superior Court 522 P 2d 666 (1974).

60  Weintraub (1977) 41 Law and Contemporary Problems 146, 153.

61  Cavers (1970) III Hague Recueil 75, 129.

62  Currie (1963) 63 Col LR 1233, 1241–2.

63  Bernhard v Harrah’s Club 546 P 2d 719 at 722 (1976).

64  Currie, Selected Essays on the Conflict of Laws (1963), especially Chapters 4 and 12; (1963) 63 Col LR 1233.

65  Eg Erny v Estate of Merola 792 A 2d 1208 (NJ 2002).

66  See Shapira, The Interest Approach to Choice of Law (1970), pp 34–44.

67  For criticism of Currie’s views, see Kegel (1964) II Hague Recueil 91, 180–207; Reese (1965) 16 UTLJ 228; Shapira, The Interest Approach to Choice of Law (1970), pp 175–85; Cavers (1970) III Hague Recueil 75, 147–8; Kahn-Freund (1974) III Hague Recueil 139, 413–5; Reese (1976) II Hague Recueil 1, 44–62, 181–91; Hancock (1977) 26 ICLQ 799; North (1980) I Hague Recueil 9, 33–8; Juenger (1984) 32 AJCL 1, 25–50. For defence of Currie’s views, see Weintraub (1984) 35 Mercer LR 629; Posnak (1988) 36 AJCL 681; (1994) 40 Wayne LR 1121; Kay (1989) II Hague Recueil 9; Shaman (1997) 45 Buffalo LR 329. See also the symposium in [2015] U Ill L Rev 1847 et seq.

68  Kegel (1964) II Hague Recueil 91, 181–9.

69  See Brilmayer (1980) 78 Mich LR 392.

70  Fawcett (1982) 31 ICLQ 150.

71  See Kegel (1979) 27 AJCL 615.

72  North (1980) I Hague Recueil 9, 37. Eg Gilbert v Seton Hall University 332 F 3d 105 (2d Cir 2003).

73  (1963) 28 Law and Contemporary Problems 754.

74  (1963) 16 Stan LR 1; and see Horowitz (1974) 21 UCLALR 719, 748–58.

75  Bernhard v Harrah’s Club 546 P 2d 719 (1976); Offshore Rental Co Inc v Continental Oil Co 583 P 2d 721 (1978); and see Liew v Official Receiver 685 F 2d 1192 (1982).

76  Offshore Rental Co Inc v Continental Oil Co 583 P 2d 721 at 727 (1978). For criticisms of this approach, see Bradley (1976) 29 Stan LR 127, 146; Weintraub (1977) 41 Law and Contemporary Problems 146, 158; North (1980) I Hague Recueil 9, 38–40; Kay (1980) 68 Calif LR 577; and Juenger (1999) 73 Tul LR 1309.

77  (1933) 47 Harv LR 173.

78  The Choice-of-Law Process (1965); (1970) III Hague Recueil 75; (1977) 26 ICLQ 703; The Choice of Law, Selected Essays (1985).

79  The Choice-of-Law Process (1965), p 94.

80  Ibid, p 64.

81  The courts have, in some cases, attempted to develop such detailed rules; see Neumeier v Kuehner 286 NE 2d 454 (1972); First National Bank in Fort Collins v Rostek 514 P 2d 314 (1973); Bader v Purdom 841 F 2d 38 (1988).

82  For criticisms, see de Nova (1966) II Hague Recueil 435, 597–603; Lipstein (1972) I Hague Recueil 97, 157–61.

83  (1933) 47 Harv LR 173, 203.

84  A Treatise on the Conflict of Laws (1962); Private International Law, Vols I–III (1967–1977); (1960) 58 Mich LR 637; (1961) 49 Cal LR 240; (1968) II Hague Recueil 167, 178.

85  Cavers (1970) III Hague Recueil 75, 150.

86  A Treatise on the Conflict of Laws (1962), p 311.

87  For other criticisms, see Shapira, The Interest Approach to Choice of Law (1970), pp 205–8; Kegel (1964) II Hague Recueil 91, 224–36; Lipstein (1972) I Hague Recueil 97, 144–7.

88  Cheetham and Reese (1952) 52 Col LR 959. See Symeonides (1997) 56 Maryland LR 1248.

89  Reese (1976) II Hague Recueil 1, 44–65.

90  Ibid, p 180.

91  See Shapira, The Interest Approach to Choice of Law (1970), p 214.

92  Eg Babcock v Jackson 191 NE 2d 279 (1963); Pancotto v Sociedade de Safaris de Mocambique SARL 422 F Supp 405 (1976).

93  See the symposium in (1997) 56 Maryland LR 1193. Also Dowis v Mud Slingers Inc 621 SE 2d 413 at 417–8 (Ga 2005).

94  Cavers (1970) III Hague Recueil 75, 145.

95  Leflar, American Conflicts Law (1986) 4th edn, pp 277–9. For an assessment of Leflar’s work, see the symposium in (1980) 34 Ark LR 199. Also Mikelson v United Services Auto Association 111 P 3d 601 (Hawaii 2005).

96  Eg Clark v Clark 222 A 2d 205 (1966); Turcotte v Ford Motor Co 494 F 2d 173 (1974); Wille v Farm Bureau Mutual Insurance Co 432 NW 2d 784 (1988); cf Boucher v Boucher 553 A 2d 313 (1988).

97  Cavers (1971) 49 Texas LR 211, 215; but contrast Juenger (1985) IV Hague Recueil 119, 253–318. See Symeonides (2001) 49 AJCL 1, 8 et seq; and Jepson v General Cas Co of Wisconsin 513 NW 2d 467, 473 (Minn 1994).

98  Though some direct influence in England can be seen, on what were our choice of law rules in tort, in Chaplin v Boys [1971] AC 356, HL, infra, pp 777–8.

99  Audit (1979) 27 AJCL 589.

100  Vitta (1982) 30 AJCL 1.

101  Kegel (1979) 27 AJCL 615.

102  Siehr (2000) 60 La LR 1353.

103  See further the symposium papers collected in (1982) 30 AJCL 1–146; Jayme, in de Boer (ed), Forty Years On: The Evolution of Postwar Private International Law in Europe (1990) 15; Vischer, in Nafziger and Symeonides (eds), Law and Justice in a Multistate World (2002) 459.

104  Eg Juenger (1984) 32 AJCL 1; (1985) 46 Ohio State LJ 509; (1985) IV Hague Recueil 119, 227–52; (1988) 21 UC Davis LR 515; Rosenberg (1981) 81 Col LR 946; Korn (1983) 83 Col LR 772; Reppy (1983) 34 Mercer LR 645; Brilmayer (1985) 46 Ohio State LJ 459; (1984) 35 Mercer LR 555; Dane (1987) 96 Yale LJ 1191; Brilmayer (1989) 98 Yale LJ 1277; and see Baxter (1987) 36 ICLQ 92; Whitten (2001) 37 Willamette LR 259; Maltz (2005) 36 Rutgers LJ 527; cf Weintraub (1984) 35 Mercer LR 629; Posnak (1988) 36 AJCL 681; (1994) 40 Wayne LR 1121; Kay (1989) II Hague Recueil 9; Shaman (1997) 45 Buffalo LR 329. Also, the symposium in (2000) 75 Ind LJ 399, including comment by Juenger (at 403), Symeonides (at 437), Simson (at 649) and Weintraub (at 679); Symeonides (2001) 37 Willamette LR 1; Symeonides, The American Choice-of-Law Revolution: Past, Present and Future (2006); Levin (2007) 60 Stan LR 247; and the symposium in [2015] U Ill L Rev 1847 et seq.

105  Paul v National Life 352 NE 2d 550 at 551, 553 (1986).

106  It is often the case that a court may be influenced by more than one approach, as in Mitchell v Craft 211 So 2d 509 (1968). For a striking example of a federal court applying a variety of approaches to different claims arising from one accident, see Re Air Crash Disaster Near Chicago Illinois on May 25, 1979 644 F 2d 594 (1981).

107  North (1980) I Hague Recueil 9.

108  See Knop, Michaels and Riles (2008) 71(3) Law and Contemporary Problems 1; Michaels (2009) 11 YBPIL 11.

109  See, generally, Whincop and Keyes, Policy and Pragmatism in the Conflict of Laws (2001); Basedow and Kono (eds, in cooperation with Rühl), An Economic Analysis of Private International Law (2006); Kono (2013) 369 Hague Recueil 361; and O’Hara (ed), Economics of Conflict of Laws (2007).

110  Michaels, in Basedow and Kono (eds) 143; (2008) 71 Law and Contemporary Problems 73; (2009) 11 YBPIL 11, 23–4.

111  See, eg, Whincop and Keyes; O’Hara and Ribstein, The Law Market (2009); (2000) 67 U Chi L Rev 1151.

112  See, eg, Brilmayer, Conflict of Laws: Foundations and Future Directions (1995) 2nd edn, pp 169–218; Kramer (1990) 90 Col L Rev 277; Trachtman, The Economic Structure of International Law (2008); (1994) 26 Vand J Transnat L 975; (2001) 42 Va J Int L 1.

113  See, eg, Guzman (2002) 90 Geo LJ 883; see also Muir Watt (2003) 9 Col J Eur L 383; (2004) 307 Hague Recueil 25; (2004) 39 Tex Int L J 429; (2005) 9 Edinburgh L Rev 6; Wai (2002) 40 Col J Transnat L 209.

114  See, eg, Garcimartín Alférez (1999) 8 Eur J L & Econ 251.

115  For other economic models see, eg, Solimine (1989) 24 Georgia LR 49; Stephan (2002) 90 Geo LJ 957; Rühl (2006) 24 Berkeley J Int L 801; Rühl, in Gottschalk, Michaels, Rühl and von Hein (eds), Conflict of Laws in a Globalized World (2007) 153; (2010) 6 J Priv Int L 59. See also O’Hara and Parisi, ‘Conflict of Laws’, in Newman (ed), The New Palgrave Dictionary of Economics and the Law (1998), Vol 1, 387; Parisi and Ribstein, ‘Choice of Law’, in Newman (ed), The New Palgrave Dictionary of Economics and the Law (1998), Vol 1, 236; O’Hara and Ribstein, ‘Conflict of Laws and Choice of Law’, in de Geest (ed), Encyclopedia of Law and Economics (2012), Vol 8, Chapter 5.

116  See, eg, Muir Watt and Fernandez Arroyo (eds), Private International Law and Global Governance (2014); Wai, in Mueller and Lederer (eds), Criticizing Global Governance (2005) 243; Buxbaum (2006) 46 Va J Int L 251; Whytock (2009) 84 Tul LR 67; (2009) 84 NYU L Rev 719; (2012) 2 St John’s J Int & Comp L 55; Muir Watt (2010) 6 Eur Rev Contract L 250; (2011) 2 Transnat Legal Theory 347. See also contributions to (2011) 2 Transnat Legal Theory 153 et seq.

117  See, eg, Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (2012); (2005) 153 U Pa LR 1819; (2005) 51 Wayne LR 1105; (2009) 5 Annual Review of Law and Social Science 225; Michaels (2005) 51 Wayne LR 1209; (2009) 5 Annual Review of Law and Social Science 243; Riles (2008) 71 Law and Contemporary Problems 273; Wai (2008) 71 Law and Contemporary Problems 107. See also Helmand (ed), Negotiating State and Non-State Law: The Challenges of Global and Local Legal Pluralism (2015).

118  Michaels, in Muir Watt and Fernandez Arroyo (eds), Private International Law and Global Governance (2014) 54.

119  Michaels and Pauwelyn, in Broude and Shany (eds), Multi-Sourced Equivalent Norms in International Law (2011) 19.

120  Knop, Michaels and Riles (2009) 103 Am Soc Int L Proc 269. See also Knop, Michaels and Riles (2012) 64 Stan LR 589 for the relevance of conflict of laws technique for the feminism/culture debate.

121  See Michaels (2008) 82 Tul LR 1607; Mills (2013) 23 Duke J Comp and Int L 445; Meeusen (2007) 9 Eur J Migration and L 287; see also contributions to the symposium in (2008) 82 Tul LR 1607 et seq.

122  See North (1990) I Hague Recueil 9; Symeonides (2008) 82 Tul LR 1741; von Hein (2008) 82 Tul LR 1663; Hay [2015] U Ill L Rev 2053.

123  See Michaels (2006) 2 J Priv Int L 195; Kuipers (2009) 2 Eur J L Studies 66; Kuipers, EU Law and Private International Law: The Interrelationship in Contractual Obligations (2012), Chapter 6; see also Fallon and Meeusen (2002) 4 YBPIL 37; de Baere (2004) 11 Maastricht J of Eur and Comp L 287.

124  See Weller (2015) 11 J Priv Int L 64.

125  Supra, pp 11–13; see von Hoffmann, in von Hoffmann (ed), European Private International Law (1998) 19; Beaumont (1999) 48 ICLQ 223; Basedow (2000) 37 CMLR 687; Basedow, in Andenas et al (eds), Liber Amicorum Guido Alpa: Private Law Beyond the National Systems (2007) 168; (2008) 82 Tul LR 2119; Israel (2000) 7 Maastricht JECL 81; Remien (2001) 38 CMLR 53; Boele-Wolki and van Ooik (2002) 4 YBPIL 1; D’Oliveira, in Fawcett (ed), Reform and Development of Private International Law: Essays in Honour of Sir Peter North (2002) 111; Crawford and Carruthers (2005) 3 Juridical Review 251; Dickinson (2005) 1 J Priv Int L 197; Fiorini (2008) 57 ICLQ 969; Kuipers, EU Law and Private International Law: The Interrelationship in Contractual Obligations (2012). For an early analysis see Drobnig (1967) 15 AJCL 204.

126  Treaty on the Functioning of the European Union, Art 81(2).

127  See Muir Watt, in Cafaggi (ed), The Institutional Framework of European Private Law (2006) 107; Cafaggi and Muir Watt, ‘Introduction’, in Cafaggi and Muir Watt (eds), Making European Private Law: Governance Design (2008); Cafaggi and Muir Watt (eds), The Regulatory Function of European Private Law (2009); Muir Watt (2003) 9 Col J Eur L 383; (2005) 9 Edinburgh L Rev 6.

128  Supra, pp 10–11.

129  Mills, The Confluence of Public and Private International Law (2009); (2010) 32 U Pa J Int Law 369.

130  Mills, ibid; Remien (2001) 38 CMLR 53; Liukkunen (2012) 20 Eur Rev Priv L 1045.

131  See generally Bomhoff, in Muir Watt and Fernandez Arroyo (eds), Private International Law and Global Governance (2014) 262.

132  See, eg, in the area of company law, Case C-212/97 Centros Ltd v Erhvervs-og Selskabsstyrelsen [1999] ECR 1-1459; Case C-208/00 Uberseering BV Nordic Construction Co Baumanagement GmbH (NCC) [2002] ECR 1-9919; Case C-167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd [2003] ECR 1-10155; Case C-411/03 SEVIC Systems AG [2005] ECR I-10805; Case C-210/06 Cartesio Oktató és Szolgáltató bt [2008] ECR I-9641; Case C-371/10 National Grid Indus BV v Inspecteur van de Belastingdienst Rijnmond/kantoor Rotterdam [2011] ECR I-12273; Case C-378/10 VALE Építési kft EU:C:2012:440, [2013] 1 WLR 294; in the area of labour law, Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779; Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet [2007] ECR I-11767.

133  Muir Watt (2001) 36 Tex Int LJ 539.

134  See, eg, Case C-148/02 Garcia Avello v Belgium [2003] ECR I-11613; Case C-353/06 Grunkin-Paul [2008] ECR I-7639; Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptstadt von Wien [2010] ECR I-13693; Case C-391/09 Runevič-Vardyn & Wardyn v Vilniaus miesto savivaldybès administacija [2011] ECR I-3787; cf Muir Watt (2008) 82 Tul L Rev 1983.

135  Joerges (1998) 18 Legal Studies 146; (2004) 14 Duke J Comp and Int L 149; (April 2013) LEQS Paper No 28/2010.

136  More generally, on private international law and EU external relation see Mills (2016) 65 ICLQ 541.

137  See Case C-381/98 Ingmar GB Ltd v Eaton Leonard Technologies Inc [2000] ECR I-9305; Francq (2006) 8 YBPIL 333.

138  On the impact of human rights see Fawcett, Ní Shúilleabháin and Shah, Human Rights and Private International Law (2016).

139  See Dickinson (2016) 12 J Priv Int L 195.

140  Supra, p 24 et seq.

141  See Fentiman (2008) 82 Tul LR 2021; Harris (2008) 4 J Priv Int L 347.