C.1 ON MAPPING THE CONCEPTUAL BATTLEFIELD OF PRIVATE INTERNATIONAL LAW

Hague Yearbook of International Law/Annuaire de La Haye de Droit International

Volumn 13, Issue , 2001, Pages 57-64

  Hatzimihail, Nikitas E ^a,b  

^a HARVARD LAW SCHOOL   (United States)

^b UNIVERSITÉ LIBRE DE BRUXELLES   (Belgium)

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EID: 84926185487     PISSN: 09238298     EISSN: None     Source Type: Book Series    
DOI: None     Document Type: Chapter

References (24)

1. See, e.g., YvonLoussouarn and Pierre Bourel, Droit international prive, 6th ed., Paris, 1999, p. 86 et seq.;
2. G. van Heeke, Universalisme et particularisme des regles de conflit au XXe siecie, in: Melanges Jean Dabin, vol. II, Brussels, 1963, p. 941 et seq.
3. Bernard Audit, Droit international prive, 3rd ed., Paris, 2000, p. 1 et seq., who uses the two terms in illustrating the "fundamental antinomy" within private international law.
4. For a working defmition, see Pierre Mayer, Droit international prive, 6th ed., Paris, 1998, p. 50: "nationalist" private international lawyers "attach more importance to the 'national interest' than to the ideal vision of a world where one's own State has to be treated on a strict footing of equality with the others"; up to 1991 (4th ed., p. 58), Mayer used as the defining characteristic of nationalism the giving of preference to one's own law over foreign laws and consenting with unease to the application of those latter; internationalism, linked with universalism, was in contrast characterized by the principle of State equality.
5. Franois Rigaux, Rapport de synthese: Pour une relecture de François Laurent en 1987, in: Liber Memorialis François Laurent, Brussels, 1989, p. 668
6. invokes simultaneously - but in rather more restrictive versions - both conceptions to defme internationalism. See also Johan Meeusen, Nationalisme en Internationalisme in het Internationaal Privaatrecht: Analyse van het Belgische Conflictenrecht, Antwerp, 1997.
7. See Mayer, op. cit. supra, pp. 46-47. The distinction, described in terms of a shift of paradigms, was conceptualized during the In:terwar process of doctrinal reconstruction/counter-attack against the particularists.
8. The invocation of Savigny in French doctrine (see, e.g., Bernard Audit, A Continental Lawyer Looks at American Choice-of-law Principles, in: 27 AJCL 1979, p. 589, where Savigny is invoked by means of genealogizing the teleological interpretation of choice-of-law rules), has similar origins.
9. In his essay Le mouvement des idees dans Ie droit des conflits de lois, in: Droits 1985/2, p. 129 et seq.
10. Mayer opposes to the "conflict of sovereignties" the conception of conflict of laws as a "logically necessary choice of the applicable law to a relation between private persons" - drawing a matrix between state and private interests on the one hand, and the consideration or not of the content of substantive rules on the other. This is a more complete framework, which broadly corresponds to the evolution from classical conflict of laws to what could be called modern conflict of laws.
11. David Kennedy, New Approaches to Comparative Law: Comparativism and International Governance, in: Utah L. Rev. 1997, pp. 545, 549 n. 4, defines governance as "the complex of more or less formalized bundles of rules, roles and relationships that define the social practices of state and non-state actors interacting in various issue areas". I would also stress the dimension of governance as process, and the merging of a normativist and an institutionalist perspective into something broader than each.
12. A.V. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, London, 1896, p. 28 et seq.
13. François Laurent, Droit civil international, t. I, Brussels-Paris, 1880, p. 65 et seq.
14. The most characteristic force of the period was the "Latin" school, whose founder though not the major doctrinal exponent was Pasquale Mancini: usually remembered for the "principle of nationality", the Latin school's most important contribution to the field came through their association of private with public international law, their involvement with the Institute of International Law (est. 1873) and, more generally, their Liberalism. Savigny (one to two generations older than the founders of the Institute) was on the contrary much less "activist" in the pursuance of an international legislative agenda, and much less keen on the elaboration of a distinct legal discipline.
15. It is in this sense that we can differentiate "classical" private international law as a discipline from "pre-classical" conflict of laws as interpretative method. Classical doctrine or perhaps better consciousness emerges in the mid-19th century and is challenged in the mid- to late 20th by a modem consciousness characterized by a plurality of methods and disciplinary approaches (see the separation of international business law and the mobilization of comparativism, uniformlaw, as well as the role of international economic law across the Atlantic).
16. See, e.g., Jean-Louis Halperin, Entre nationalisme juridique et communaute de droit, Paris, 1999.
17. See especially Ernest G. Lorenzen, Territoriality, Public Policy and the Conflict of Laws, in: 33 YLJ 1924, p. 736. The - more celebrated today - Walter Wheeler Cook took the further step of opposing in terms of theoretical v. positive the very notion of inductive (as opposed to deductive) legal reasoning.
18. One thing evading contemporary stories is how marginal the realist critiques were in the field of US conflict of laws until after World War II (and Beale's death). Likewise, while none should underestimate the impact of jurisprudence in its contemporary conflicts doctrine, scarce attention is paid in the developments in the US constitutional law - exemplified by Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) - which not only killed Justice's Story "general" federal common law but also made redundant the discussion of US Supreme Court control of choice of law in state courts; the way the United States came to view the outside role and their own role facing it might also be paramount; last but not least, "material" developments such as the advent of the automobile, the explosion of tort litigation and temporary migration, etc.
19. Lea Brilmayer, Conflict of Laws, 2nd ed., Boston, 1995
20. It is interesting that this is a trait shared by two seemingly opposing streams of modem conflicts doctrine, Conflict of Laws as Public Policy, and Conflict of Laws as Technocracy. The former has often missed the forest for the tree in the pursuit of specific policy goals, a situation the latter has attempted to deal with through the proliferation - and de-politicization - of techniques, devices and methods unique to the discipline. It has also often taken for granted, and thus abstained from the examination thereof, a certain version of the "big picture".
21. The distinction of a "political" and a "scientific" private international law was coined, in a non-polemical sense, by Henri Batiffol. Given the load each expression carries today, I am also using David Kennedy's idea of contrasting a "cosmopolitan" and a "metropolitan" sensibility, although admittedly the terms are used in a different context and perhaps a different sense.
22. David Kennedy, The International Style in Postwar and Policy, in: Utah L. Rev. 1994, p. 7.
23. A careful reading of pre-classical doctrine offers some good illustrations: Bartolus bases his doctrines on a ius commune inherently linked to the Holy Roman Empire; by the time of Ulrik Huber the ius commune had lost any claim to an "external", ratione auctoratatis normativity, but the idea of a "civilizational" external system allowed Ulrik Huber's idea of comity to have a normative undertone in a way Joseph Story's will not, 150 years later.
24. For an excellent reminder of the role of material changes, see Richard Fentiman's National Report (England), in: Symeon Symeonides, ed., Private International Law at the End of the 20th Century: Progress or Regress? (XV International Congress of Comparative Law), The Hague, 2000, p. 165 et seq.