Private International Law: Idealism, Pragmatism, Eclecticism

PRIVATE INTERNATIONAL LAW :
IDEALISM, PRAGMATISM, ECLECTICISM
General Course
on Private International Law
by
SYMEON C. SYMEONIDES
S. C. SYMEONIDES

TABLE OF CONTENTS
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Chapter I. Historical foundations. . . . . . . . . . . . . . . . . . . . . . . 35
Section 1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2. From ancient Greece to medieval Italy. . . . . . . . . . . . . 37
Section 3. Early footings : Bartolus, statutists, and unilateralism. . . . . 38
Section 4. Huber’s comity. . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5. The nineteenth century : the classical PIL edifice. . . . . . . 44
A. Story. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
B. Wächter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
C. Savigny and multilateralism. . . . . . . . . . . . . . . . . . . . . . 48
D. Other nineteenth-century scholars.. . . . . . . . . . . . . . . . . . 52
Section 6. The twentieth century. . . . . . . . . . . . . . . . . . . . . . 53
A. The two halves.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
B. Beale and the traditional American choice-of-law system. . . . . . 54
.. . . . . . . . . . . . . . . . . . . . . . . .
1. Territoriality . . . . 55
2. Vested rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
3. The first conflicts Restatement. . . . . . . . . . . . . . . . . . . 58
Section 7. Summary : the classical PIL system. . . . . . . . . . . . . . . 62
Chapter II. Substantivist carve-outs. . . . . . . . . . . . . . . . . . . . . . 64
Section 1. The original substantivist method. . . . . . . . . . . . . . . . 64
Section 2. Contemporary substantivist carve-outs. . . . . . . . . . . . . 65
A. Legislative substantivism. . . . . . . . . . . . . . . . . . . . . . . 66
1. Internationally.. . . . . . . . . . . . . . . . . . . . . . . . . . . 66
2. Regionally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
3. Nationally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
B. Non-state, anational substantivism. . . . . . . . . . . . . . . . . . 72
C. Substantivism in arbitration. . . . . . . . . . . . . . . . . . . . . . 77
D. Substantivism in adjudication. . . . . . . . . . . . . . . . . . . . . 78
Section 3. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Chapter III. The “international” in private international law. . . . . . . . . 85
Section 1. What’s in a name ?.. . . . . . . . . . . . . . . . . . . . . . . 85
A. Conflict of laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
B. Private international law. . . . . . . . . . . . . . . . . . . . . . . . 87
Section 2. Internationality. . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 3. International uniformity. . . . . . . . . . . . . . . . . . . . . 92
Section 4. Interstate uniformity. . . . . . . . . . . . . . . . . . . . . . . 96
Section 5. Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Chapter IV. The “private” in private international law. . . . . . . . . . . . 100
Section 1. Introduction : private or public law ?. . . . . . . . . . . . . . 100
Section 2. Brainerd Currie and state interests. . . . . . . . . . . . . . . 103
A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
B. Do states have an interest in multistate disputes between private
parties ?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
14 S. C. Symeonides
C. Are state interests ascertainable ?. . . . . . . . . . . . . . . . . . . 109

D. Re-conceptualizing state interests. . . . . . . . . . . . . . . . . . . 112
E. Can an interest-based approach rationally resolve conflicts ?. . . . 113
1. False conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
2. True conflicts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
3. No-interest cases. . . . . . . . . . . . . . . . . . . . . . . . . . 118
F. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Section 3. Not “only in America” : recognition of state interests else-
where. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
A. Not for export. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
B. Unilateralist tools. . . . . . . . . . . . . . . . . . . . . . . . . . . 120
C. Multilateral but non-neutral rules. . . . . . . . . . . . . . . . . . . 121
D. Constitutionalization of PIL. . . . . . . . . . . . . . . . . . . . . . 125
Chapter V. Unilateralist encroachments. . . . . . . . . . . . . . . . . . . . 131
A. Misplaced labels. . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
B. History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
C. The differences.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Section 2. The resilience of unilateralism. . . . . . . . . . . . . . . . . 135
Section 3. Unilateralism in academic doctrine. . . . . . . . . . . . . . . 136
A. In Europe.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
B. In the United States. . . . . . . . . . . . . . . . . . . . . . . . . . 139
Section 4. Not “only in America” : the ubiquity of unilateralism. . . . . 143
A. Unilateral choice-of-law rules in PIL codifications. . . . . . . . . 143
1. Old-fashioned, general unilateral rules . . . . . . . . . . . . . 143
2. Unilateral rules for tort conflicts. . . . . . . . . . . . . . . . . 145
3. Multiple nationalities. . . . . . . . . . . . . . . . . . . . . . . 148
4. Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
5. Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
6. Divorce .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
7. Adoption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
8. Maintenance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
9. Successions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
10. Formal validity. . . . . . . . . . . . . . . . . . . . . . . . . . 159
11. Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
12. Rights in movables. . . . . . . . . . . . . . . . . . . . . . . . 162
13. Mea culpa. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
B. Mandatory rules or rules of immediate application . . . . . . . . . 164
C. Unilateralism in substantive statutes. . . . . . . . . . . . . . . . . 172
1. “Localizing rules” : concept and function. . . . . . . . . . . . . 172
2. Consumer contracts. . . . . . . . . . . . . . . . . . . . . . . . . 174
3. Insurance contracts. . . . . . . . . . . . . . . . . . . . . . . . . 175
4. Employment contracts . . . . . . . . . . . . . . . . . . . . . . . 176
5. Franchise, distributorship, and commercial agency contracts. . . 177
6. Other contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . 178
7. Antitrust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Section 5. Symbiosis .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
A. Unilateralism is alive and kicking . . . . . . . . . . . . . . . . . . 179
B. Methodological implications : from antagonism to symbiosis. . . . 180
C. Unilateralism and parochialism. . . . . . . . . . . . . . . . . . . . 182
General Course on Private International Law 15
D. The unilaterality of multilateralism. . . . . . . . . . . . . . . . . . 186

E. Comparison.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
F. Combining multilateralism with accommodative unilateralism . . . 191
Chapter VI. The material tempering of conflicts justice. . . . . . . . . . . 195
Section 1. The question. . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Section 2. The orthodox answer : “conflicts justice”. . . . . . . . . . . . 195
Section 3. The heretical answer : “material justice”. . . . . . . . . . . . 198
A. The thesis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
B. The American version. . . . . . . . . . . . . . . . . . . . . . . . . 199
1. David F. Cavers . . . . . . . . . . . . . . . . . . . . . . . . . . 199
2. Robert A. Leflar. . . . . . . . . . . . . . . . . . . . . . . . . . 201
(a) Leflar’s approach.. . . . . . . . . . . . . . . . . . . . . . . 201
(b) Judicial reception.. . . . . . . . . . . . . . . . . . . . . . . 202
3. Other American authors. . . . . . . . . . . . . . . . . . . . . . 205
C. European perspectives. . . . . . . . . . . . . . . . . . . . . . . . . 207
Section 4. Covert result selectivism in the courts. . . . . . . . . . . . . 208
Section 5. Overt result selectivism in legislation. . . . . . . . . . . . . . 213
A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
B. Result-selective choice-of-law rules in general. . . . . . . . . . . . 214
C. Rules favouring the validity of certain juridical acts (favor vali-
ditatis). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
1. Testaments (favor testamenti). . . . . . . . . . . . . . . . . . . 217
(a) Formal validity. . . . . . . . . . . . . . . . . . . . . . . . . 217
(b) Substantive validity. . . . . . . . . . . . . . . . . . . . . . 219
2. Contracts and other juridical acts (favor negotii). . . . . . . . . 220
(a) Formal validity. . . . . . . . . . . . . . . . . . . . . . . . . 220
(b) Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
D. Rules favouring a certain status. . . . . . . . . . . . . . . . . . . . 225
1. Legitimacy (favor legitimationis). . . . . . . . . . . . . . . . . 225
2. Filiation (favor infantis). . . . . . . . . . . . . . . . . . . . . . 226
3. Acknowledgment. . . . . . . . . . . . . . . . . . . . . . . . . . 228
4. Adoption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
5. Marriage (favor matrimonii). . . . . . . . . . . . . . . . . . . . 230
6. Divorce (favor divortii).. . . . . . . . . . . . . . . . . . . . . . 233
E. Rules favouring one party : choice of law by, or for the benefit of,
one party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
1. Pre-dispute choice by one party. . . . . . . . . . . . . . . . . . 237
2. Post-dispute choice by one party.. . . . . . . . . . . . . . . . . 238
(a) Victim’s choice in cross-border torts and products liability. 239
(1) All cross-border torts. . . . . . . . . . . . . . . . . . . 239
(2) Products liability. . . . . . . . . . . . . . . . . . . . . . 239
(3) Other cross-border torts. . . . . . . . . . . . . . . . . . 240
(b) Choice by owner of stolen property. . . . . . . . . . . . . . 242
(c) Choice by unwed mother. . . . . . . . . . . . . . . . . . . 242
3. Post-dispute choice by the court. . . . . . . . . . . . . . . . . . 243
(a) Court choice for the benefit of tort victims. . . . . . . . . . 243
(b) Court choice for the benefit of maintenance obligees. . . . 244
16 S. C. Symeonides
(c) Court choice for the benefit of children and other weak

parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
(d) Protecting consumers or employees from the consequences
of an adverse choice-of-law clause. . . . . . . . . . . . . . 249
A. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
B. Not “only in America”.. . . . . . . . . . . . . . . . . . . . . . . . 251
C. Result selectivism in legislation and adjudication. . . . . . . . . . 252
D. Exceptional ?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Chapter VII. The softening of concepts and rules.. . . . . . . . . . . . . . 256
Section 2. The virtual abandonment of connecting factors in the United
States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Section 3. Not “only in America” : the softening of connecting factors
in recent codifications. . . . . . . . . . . . . . . . . . . . . . . . . . . 263
A. The closer or closest connection. . . . . . . . . . . . . . . . . . . 264
1. The closest connection as the principal connecting factor. . . . 265
2. The closest connection in specific roles. . . . . . . . . . . . . . 266
(a) The closest connection as a presumption in contract con-
flicts, subject to a closer-connection escape . . . . . . . . . 266
(b) The closest connection as a presumption in tort conflicts
subject to a closer-connection escape. . . . . . . . . . . . . 268
(c) The closest connection as a connecting factor in other
conflicts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
(d) Close connection and mandatory rules. . . . . . . . . . . . 270
(e) The closest connection as a tiebreaker. . . . . . . . . . . . 271
(f) The closest connection as a pointer in cases involving a
federal or other plurilegal state. . . . . . . . . . . . . . . . 273
(g) The closest connection as a gap-filler for unprovided-for
cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
B. Other soft connecting factors. . . . . . . . . . . . . . . . . . . . . 275
Section 4. Escape clauses. . . . . . . . . . . . . . . . . . . . . . . . . . 276
A. General escapes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
B. Specific escapes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
1. Escapes based on the “closer connection”. . . . . . . . . . . . . 282
2. Escapes based on other factors.. . . . . . . . . . . . . . . . . . 284
C. Assessment of escapes. . . . . . . . . . . . . . . . . . . . . . . . . 287
1. Too much geography, too little principle. . . . . . . . . . . . . 288
2. Issue-by-issue deployment. . . . . . . . . . . . . . . . . . . . . 291
Section 5. The movement toward flexibility. . . . . . . . . . . . . . . . 292
A. The perennial tension. . . . . . . . . . . . . . . . . . . . . . . . . 292
B. The American overreaction. . . . . . . . . . . . . . . . . . . . . . 294
C. A cautious evolution. . . . . . . . . . . . . . . . . . . . . . . . . . 296
D. Codification and flexibility. . . . . . . . . . . . . . . . . . . . . . 298
Chapter VIII. The narrowing of legal categories. . . . . . . . . . . . . . . 301
Section 1. The classical PIL model : “legal relations”. . . . . . . . . . . 301
Section 2. American developments. . . . . . . . . . . . . . . . . . . . . 302
A. From broad categories to issues.. . . . . . . . . . . . . . . . . . . 302
B. Issue-by-issue analysis. . . . . . . . . . . . . . . . . . . . . . . . . 303
C. Dépeçage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305

1. What is dépeçage ?. . . . . . . . . . . . . . . . . . . . . . . . . 305
2. What dépeçage is not.. . . . . . . . . . . . . . . . . . . . . . . 307
3. In the abstract, dépeçage is neither good nor bad.. . . . . . . . 308
4. Occasionally, dépeçage is problematic. . . . . . . . . . . . . . 308
5. Dépeçage in practice. . . . . . . . . . . . . . . . . . . . . . . . 311
Section 3. Not “only in America” : dépeçage in codified PIL systems.. 312
Section 4. Dépeçage in the Rome Convention and the Rome Regula-
tions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
A. Rome Convention and Rome I Regulation. . . . . . . . . . . . . . 316
B. Rome II.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
Section 5. Dépeçage in other modern codifications. . . . . . . . . . . . 321
A. Statutory and voluntary dépeçage. . . . . . . . . . . . . . . . . . . 322
1. Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
(a) Statutory dépeçage. . . . . . . . . . . . . . . . . . . . . . . 322
(b) Voluntary dépeçage. . . . . . . . . . . . . . . . . . . . . . 323
2. Torts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
3. Marriage.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
4. Matrimonial property regimes. . . . . . . . . . . . . . . . . . . 326
5. Successions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
6. Trusts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
B. Judicial dépeçage. . . . . . . . . . . . . . . . . . . . . . . . . . . 330
1. Preliminary or incidental question. . . . . . . . . . . . . . . . . 330
2. Ordre public. . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
3. Mandatory rules.. . . . . . . . . . . . . . . . . . . . . . . . . . 332
4. Escape clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . 332
Chapter IX. From idealism to pragmatism and eclecticism. . . . . . . . . . 336
Section 1. The classical PIL.. . . . . . . . . . . . . . . . . . . . . . . . 336
Section 2. Contemporary PIL. . . . . . . . . . . . . . . . . . . . . . . . 337
A. Nature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
B. Goals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
C. Means .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Section 3. Not “only in America”.. . . . . . . . . . . . . . . . . . . . . 340
Section 4. Evolution, pragmatism, and eclecticism.. . . . . . . . . . . . 346
Section 5. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
BIOGRAPHICAL NOTE
Symeon C. Symeonides, born 1949 in Lythrodontas, Cyprus.

Law degrees : Aristotle University of Thessaloniki : LL.B. in Private Law, summa
cum laude (1972), LL.B. in Public Law, summa cum laude (1973) ; Harvard Law
School : LL.M. (1974), S.J.D. (1980). Honorary degrees. LL.D. Aristotle University
(2012) ; Ph.D. University of Cyprus (2014) ; LL.D. Willamette University (2016).
Academic positions : Willamette University : Dean Emeritus, Alex L. Parks
Distinguished Chair in Law (since 2011), Dean, Professor of Law (1999-2011) ;
Louisiana State University : Judge Albert Tate Professor of Law (1989-1999),
Vice Chancellor (1991-1997), Professor (1978-1989) ; University of Thessaloniki :
Assistant Professor (1976-1978) ; Visiting Professor : NYU (2016), Paris-I (2005,
2006, 2007, 2008), Paris-V (2002, 2003, 2004), Louvain-la-Neuve (1997), Tulane
(1985), Loyola (1982).
Honours : Life Time Achievement Award, American Society of Comparative
Law (2015) ; Certificate of Merit, American Society of International Law (2015) ;
Courtland H. Peterson Senior Scholar Prize (2013) ; Robert L. Misner Award
for Excellence in Faculty Scholarship (2016, 2012) ; Honoured by Academia
Mexicana de Derecho Privado y Comparado (2011) and Asociación Americana de
Derecho Internacional Privado (2010) ; Recipient of Key to the City, Lythrodontas
(2009) ; Friedrich K. Juenger Prize in Private International Law (2002) ; “A Tribute
to Symeon C. Symeonides”, 60 La. L. Rev. 1035-1399 (2000) ; Resolution of
Appreciation, Association of American Law Schools Section on Conflict of Laws
(1999) ; Order of the Coif ; highest graduation grade (10 out of 10) in University of
Thessaloniki Law School history ; Phi Beta Kappa.
Law reform work : American Law Institute : Adviser, Restatement (Third) of
Conflict of Laws (since 2015) ; Hague Conference on Private International Law :
Member, Working Group and Editorial Committee on the Hague Principles on
Choice of Law for International Contracts, Member, Working Group on Convention
on Jurisdiction and Recognition and Enforcement of Foreign Judgments (since
2012) ; Oregon Law Commission : Commissioner, Reporter and Chair, Choice
of Law Codification (1999-2013) ; EU Council : Chair of five Working Groups
on civil and private international law (July-December 2012) ; Joint Permanent
Commission for the Revision of the Puerto Rican Civil Code : Consultant (2002-
2006) ; Louisiana State Law Institute : Reporter and Chair, Codification of Conflicts
Law, Reporter and Chair, Revision of the Law of Leases (1984-2005) ; Puerto Rican
Academy of Legislation and Jurisprudence : Rapporteur, Codification of Private
International Law (1987-1991).
Other activities : International Association of Legal Science : President (since
2013), Vice President (2006-2013) ; American Society of Comparative Law :
Honorary President (2010-2012), President (2006-2010), Vice President (2002-
2006), Secretary (1994-2002) ; Association of American Law Schools, Section on
Conflicts of Laws : Chair (2014 and 1999) ; American Law Institute : Member (since
1988) ; Groupe européen de droit international privé (GEDIP) : Member (since
2006) ; International Academy of Comparative Law : Member (since 1994) ; Institut
de droit international : Associate Member (since 2013) ; Asociación Americana
de Derecho Internacional Privado : Honorary Member (since 2010) ; Private
International Law Series, Edward Elgar Publishing, Inc. : General Editor (since
2012) ; American Journal of Comparative Law : Member, Executive Editorial
Board (since 2007) ; Yearbook of Private International Law, Electronic Journal of
Comparative Law : Editorial Board Member ; Quadrennial International Congress
of Comparative Law : General Reporter (2010, 1998), US National Reporter (2006,
1994).
PRINCIPAL PUBLICATIONS
Books
Oxford Commentaries on American Law : Choice of Law (Oxford Univ. Press,
2016).
Private International Law : United States of America, in International Encyclopaedia
of Laws (Kluwer 2015).
Codifying Choice of Law around the World : An International Comparative Analysis
(Oxford Univ. Press, 2014).
Conflict of Laws : American, Comparative, International (with W. C. Perdue, pre-
viously including A. T. von Mehren) (Thomson-West, 3rd ed., 2012, and Teacher’s
Manual).
Conflict of Laws (with P. Hay and P. Borchers), Hornbook Series (Thomson-West,
5th ed., 2010).
Convergence and Divergence in Private International Law – Liber Amicorum Kurt
Siehr (with K. Boele-Woelki et al., eds., Eleven Int’l Pub., 2010).
Welcoming the World : U.S. National Reports to the XVIIIth International Congress of
Comparative Law (with J. C. Reitz, eds., Am. Soc’y Comp. L., 2010).
American Private International Law (Kluwer, 2008).
The American Choice-of-Law Revolution : Past, Present, and Future, The Hague
Academy of International Law Monographs (Martinus Nijhoff, 2006).
Law and Justice in a Multistate World : Essays in Honor of Arthur T. von Mehren
(with J. A. R. Nafziger, eds., Transnational Pubs., 2002).
American Law in a Time of Global Interdependence : U.S. National Reports to the
16th International Congress of Comparative Law (with J. C. Reitz, eds., Am. Soc’y
Comp. L., 2002).
Le droit international privé à la fin du vingtième siècle : progrès ou recul ? (Kluwer,
2000).
American Law at the End of the Twentieth Century : U.S. National Reports to the
15th International Congress of Comparative Law (with G. A. Bermann, eds., Am.
Soc’y Comp. L., 1998).
Comparative Private International Law : Materials for the Comparative Study of
American and European Approaches to Choice of Law in Torts and Contracts
(P. M. Hebert Pub. Inst., 4th ed., 1996).
American and Comparative Conflicts Law (P. M. Hebert Pub. Inst., 1995).
Louisiana and Comparative Conflicts Law (P. M. Hebert Pub. Inst., 4th ed., 1993).
An Introduction to the Louisiana Civil Law System (P. M. Hebert Pub. Inst., 6th ed.,
1991).
A Projet the Codification of Puerto Rican Private International Law (P. R. Acad.
Juris. & Legis., 1991).
A Sourcebook for the Codification of Puerto Rican Private International Law
(P. R. Acad. Juris. & Legis., 1991).
A Source-Book for the Revision of Louisiana Law of Conflict of Laws (La. State
L. Inst., 1984).
Conflict of Laws : Louisiana Materials (P. M. Hebert Pub. Inst., 2nd ed., 1983).
An Outsider’s View of the American Approach to Choice of Law : Comparative
Observations on Current American and Continental Conflicts Doctrine (Doctoral
Thesis, Harv. L. Sch., 1980).
Comparative Law (in Greek) (with D. Evrigenis and P. Francescakis, Sakkoulas Pubs.,
1978).
Introduction to Cypriot Law (in Greek) (Univ. Thessaloniki Press, 1977).
The Maxim Lex Loci Celebrationis in the Conflict of Laws of Marriage : A Comparative
Study of American and Greek Law (LL.M. Thesis, Harv. L. Sch., 1974).
20 S. C. Symeonides
Articles in Law Reviews and Chapters in Books

“Choice of Law in the American Courts in 2015 : Twenty-Ninth Annual Survey”, 64
Am. J. Comp. L. 221 (2016).
“Civilian Statutes and Judicial Discretion”, 76 La. L. Rev. 1125 (2016).
“The Choice-of-Law Revolution Fifty Years after Currie : An End and a Beginning”,
2015 U. Ill. L. Rev. 1847 (2015).
“Choice of Law in the American Courts in 2014 : Twenty-Eighth Annual Survey”, 63
Am. J. Comp. L. 299 (2015).
“Torts and Conflict of Laws”, in Comparative Tort Law : Global Perspectives 39
(M. Bussani and A. Sebok, eds., Elgar Pubs., 2015).
“Party Autonomy in International Contracts and the Multiple Ways of Slicing the
Apple”, 39 Brooklyn J. Int’l L. 1123 (2014).
“Choice of Law in the American Courts in 2013 : Twenty-Seventh Annual Survey”, 62
Am. J. Comp. L. 223-322 (2014).
“Party Autonomy and the Lex Limitativa”, in In Search of Justice : Essays in Honour
of Spyridon V. Vrellis 909 (H. Pamboukis et. al., eds., Nomiki Bibliothiki, 2014).
“Issue-by-Issue Analysis and Dépeçage in Choice of Law : Cause and Effect”, 45 U.
Toledo L. Rev. 751 (2014).
“L’autonomie de la volonté dans les principes de la Haye sur le choix de la loi
applicable en matière de contrats internationaux”, 102 Rev. critique dr. int’l priv.
807 (2013). Also published as “The Hague Principles on Choice of Law for
International Contracts : Preliminary Observations”, 61 Am. J. Comp. L. 873
(2013).
“Choice of Law in the American Courts in 2012 : Twenty-Sixth Annual Survey”,
61 Am. J. Comp. L. 217 (2013).
“Codification and Flexibility in Private International Law”, in General Reports of
the XVIII Congress of the International Academy of Comparative Law/Rapports
généraux du XVIIIème Congrès de L’Académie Internationale de Droit Comparé 167
(K. Brown and D. Snyder, eds., Springer Pubs., 2012).
“Choice of Law in the American Courts in 2011 : Twenty-Fifth Annual Survey”,
60 Am. J. Comp. L. 291 (2012).
“The Mosaics of Kanakaria : A Small Victory against Traders of Looted Cultural
Property” (in Greek), in Protection and Return of Cultural Property 56 (Á. Samara-
Krispi, ed., Sakkoulas Pubs., 2011).
“Choice of Law in the American Courts in 2010 : Twenty-Fourth Annual Survey”, 59
Am. J. Comp. L. 303 (2011).
“Codifying Choice of Law for Tort Conflicts : The Oregon Experience in Comparative
Perspective”, 12 Ybk. Priv. Int’l L. 201 (2010).
“Party Autonomy in Rome I and II from a Comparative Perspective”, in Convergence
and Divergence in Private International Law – Liber Amicorum Kurt Siehr 513
(with K. Boele-Woelki et al., eds., 2010) ; also published in 28 (2) Nederlands Int’l
Privaatrecht 191 (2010).
“American Federalism and Private International Law”, 63 Rev. hellénique dr. int’l 537
(2010).
“Choice of Law in the American Courts in 2009 : Twenty-Third Annual Survey”, 58
Am. J. Comp. L. 227 (2010).
“Oregon’s New Choice-of-Law Codification for Tort Conflicts : An Exegesis”, 88 Or.
L. Rev. 963 (2009).
“A New Conflicts Restatement : Why Not ?”, 5 J. Priv. Int’l L. 383 (2009).
“Choice of Law in Cross-Border Torts : Why Plaintiffs Win, and Should”, 61 Hastings
LJ 337 (2009).
“Choice of Law in the American Courts in 2008 : Twenty-Second Annual Survey”, 57
Am. J. Comp. L. 269 (2009).
“The Conflicts Book of the Louisiana Civil Code : Civilian, American, or Original ?”,
83 Tul. L. Rev. 1041 (2009).
“Result-Selectivism in Conflicts Law”, 46 Willamette L. Rev. 1 (2009).
“Party Autonomy and Private Law-Making in Private International Law : The
Lex Mercatoria that Isn’t”, in Festschrift für Konstantinos D. Kerameus 1397

(A. N. Sakkoulas and Bruylant Pubs., 2009).
“The American Revolution and the European Evolution in Choice of Law : Reciprocal
Lessons”, 82 Tul. L. Rev. 1741 (2008)
“Rome II and Tort Conflicts : A Missed Opportunity”, 56 Am. J. Comp. L. 173
(2008).
“Choice of Law in the American Courts in 2007 : Twenty-First Annual Survey”, 56
Am. J. Comp. L. 243 (2008).
“Rome II : A Centrist Critique”, 9 Ybk. Priv. Int’l L. 149 (2008).
“Oregon’s Choice-of-Law Codification for Contract Conflicts : An Exegesis”, 44
Willamette L. Rev. 205 (2007).
“The First Conflicts Restatement through the Eyes of Old : As Bad as Its Reputation ?”,
32 S. Ill. U. LJ 39 (2007).
“The Quest for the Optimum in Resolving Product-Liability Conflicts”, in Justice in
Particular : Festschrift in Honour of Professor P. J. Kozyris 431 (A. Grammaticaki-
Alexiou et al., eds., Kluwer-Sakkoulas Press, 2007).
“Choice of Law in the American Courts in 2006 : Twentieth Annual Survey”, 55 Am.
J. Comp. L. 697 (2007).
“The General Principles of the Civil Law”, in Introduction to Greek Law
(K. Kerameus and J. P. Kozyris, eds., Kluwer Pub. Co., 3rd ed., 2007).
“Cruising in American Waters : Spector, Maritime Conflicts, and Choice of Law”,
37 J. Mar. L. & Commerce 491 (2006).
“Contracts Subject to Non-State Norms : United States National Report to the 17th Con-
gress of Comparative Law”, 54 Am. J. Comp. L. 209 (2006 Supp.).
“Choice of Law in the American Courts in 2005 : Nineteenth Annual Survey”, 53 Am.
J. Comp. L. 559 (2005).
“Accommodative Unilateralism as a Starting Premise in Choice of Law”, in Balancing
of Interests : Liber Amicorum Peter Hay 417 (H.-E. Rasmussen-Bonne et al., eds.,
Verlag Recht und Wirtschaft GmbH 2005).
“A Choice-of-Law Rule for Conflicts Involving Stolen Cultural Property”, 38 Vand.
J. Transnat’l Law 1177 (2005).
“Choice of Law in the American Courts in 2004 : Eighteenth Annual Survey”, 53 Am.
J. Comp. L. 201 (2005).
“Of Teleology, State Interests, and Pluralism in Choice of Law : In Loving Memory
of Friedrich K. Juenger”, in F. K. Juenger, Choice of Law and Multistate Justice
xxxiii-xlii (Special ed., Transnational Pub., 2005).
“Choice of Law for Products Liability : The 1990s and Beyond”, 78 Tul. L. Rev. 1247
(2004).
“Tort Conflicts and Rome II : A View from Across”, in Festschrift für Erik Jayme 935
(H.-P. Mansel et. al., eds., Sellier Pubs., 2004).
“Choice of Law in the American Courts in 2003 : Seventeenth Annual Survey”, 52
Am. J. Comp. L. 1 (2004).
“Party Choice in Product-Liability Conflicts”, 12 Willamette J. Int’l L. & Disp. Resol.
263 (2004).
“Territoriality and Personality in Tort Conflicts”, in Intercontinental Cooperation
through Private International Law : Essays in Memory of Peter Nygh 401
(T. Einhorn and K. Siehr, eds., Asser Press, 2004).
“Resolving Punitive-Damages Conflicts”, 5 Ybk Priv. Int’l L. 1 (2003).
“Codifying Choice of Law for Contracts : The Oregon Experience”, 67 RabelsZ 726
(2003).
“Choice of Law in the American Courts in 2002 : Sixteenth Annual Survey”, 51 Am.
J. Comp. L. 1 (2003).
“The Mixed Legal System of the Republic of Cyprus”, 78 Tul. L. Rev. 441 (2003).
“Choice of Law in the American Courts in 2001 : Fifteenth Annual Survey”, 50 Am.
J. Comp. L. 1 (2002).
“Codifying Choice of Law for Contracts : The Puerto Rico Projet”, in Law and Jus-
tice in a Multistate World : Essays in Honor of Arthur T. von Mehren 419
(J. A. R. Nafziger and S. Symeonides, eds., Transnational Pubs., 2002).
22 S. C. Symeonides
“Choice of Law in the American Courts in 2000 : As the Century Turns”, 49 Am. J.
Comp. L. 1 (2001).
“On Deaning, Writing, and Roses”, 33 U. Toledo L. Rev. 217 (2001).
“Private International Law at the End of the 20th Century : Progress or Regress ?”, in
Comparative Law Facing the 21st Century 331 (J. W. Bridge, ed., British Inst. of
Int’l & Comp. L., 2001).
“American Choice of Law at the Dawn of the 21st Century”, 37 Willamette L. Rev.
1 (2001).
“On the Side of the Angels : Choice of Law and Stolen Cultural Property”, in Private
Law in the International Arena – Liber Amicorum Kurt Siehr 747 (J. Basedow et
al., eds., Asser Press, 2000).
“Material Justice and Conflicts Justice in Choice of Law”, in International Conflict
of Laws for the Third Millennium : Essays in Honor of Friedrich K. Juenger 125
(P. Borchers and J. Zekoll, eds., Transnational Pubs., 2000).
“The Need for a Third Conflicts Restatement (And a Proposal for Tort Conflicts)”, 75
Ind. LJ 437 (2000).
“Choice of Law in the American Courts in 1999 : One More Year”, 48 Am. J. Comp.
L. 143 (2000).
“Mandate, Agency, and Representation : A Kommentar” (with W. H. Holmes), 73 Tul.
L. Rev. 1087 (1999).
“Covenant Marriage and the Conflict of Laws” (with K. S. Spaht), 32 Creighton L.
Rev. 1085 (1999).
“Choice of Law in the American Courts in 1998 : Twelfth Annual Survey”, 47 Am. J.
Comp. L. 327 (1999).
“The Louisiana Judge : Judge, Statesman, Politician”, in Louisiana : Microcosm of a
Mixed Jurisdiction 89 (V. Palmer, ed., Carolina Academic Press, 1999).
“Choice of Law in the American Courts in 1997”, 46 Am. J. Comp. L. 233 (1998).
“The Judicial Acceptance of the Second Conflicts Restatement : A Mixed Blessing”,
56 Md. L. Rev. 1246 (1997).
“Resolving Six Celebrated Conflicts Cases through Statutory Choice-of-Law Rules”,
48 Mercer L. Rev. 837 (1997).
“Choice of Law in the American Courts in 1996 : Tenth Annual Survey”, 45 Am. J.
Comp. L. 447 (1997).
“Choice of Law in the American Courts in 1995 : A Year in Review”, 44 Am. J. Comp.
L. 181 (1996).
“Choice of Law in the American Courts in 1994 : A View ‘From the Trenches’ ”, 43
Am. J. Comp. L. 1 (1995).
“An Introduction to ‘The Romanist Tradition in Louisiana’ : One Day in the Life of
Louisiana Law”, 56 La. L. Rev. 249 (1995).
“Les clauses d’exception en matière de conflits de lois – Etats-Unis”, in Les clauses
d’exception en matière de conflits de lois et de conflits de juridiction – ou le
principe de proximité 77 (D. Kokkini-Iatridou, ed., Martinus Nijhoff, 1994).
“The ALI’s Complex Litigation Project : Commencing the National Debate”, 54 La.
L. Rev. 843 (1994).
“Choice of Law in the American Courts in 1993 (and in the Six Previous Years)”, 42
Am. J. Comp. L. 559 (1994).
“Modern Codification Techniques in Private International Law” (in Greek), 14 Rev.
hellénique dr. européen 951 (1994).
“Louisiana Conflicts Law : Two ‘Surprises’ ”, 54 La. L. Rev. 497 (1994).
“The New Law of Co-Ownership : A Kommentar” (with N. D. Martin), 68 Tul. L.
Rev. 69 (1993).
“La nuova normativa della Louisiana sul diritto internazionale privato in tema di
responsabilità extracontrattuale”, 29 Riv. dir. int’le priv. & process. 43 (1993).
“Private International Law Codification in a Mixed Jurisdiction : The Louisiana
Experience”, 57 RabelsZ 460 (1993).
“Louisiana’s New Law of Choice of Law for Tort Conflicts : An Exegesis”, 66 Tul.
L. Rev. 677 (1992).
“Les grands problèmes de droit international privé et la nouvelle codification de

Louisiane”, 81 Rev. critique dr. int’l priv. 223 (1992).
“Ruminations on Real Actions”, 51 La. L. Rev. 493 (1991).
“Problems and Dilemmas in Codifying Choice of Law for Torts : The Louisiana
Experience in a Comparative Perspective”, 38 Am. J. Comp. L. 431 (1990).
“Choice of Law in the American Courts in 1989 : An Overview” (with J. P. Kozyris),
38 Am. J. Comp. L. 601 (1990).
Revising Puerto Rico’s Conflicts Law : A Preview”, 28 Colum. J. Transn’l L. 413
(1990).
“Choice of Law in the American Courts in 1988”, 37 Am. J. Comp. L. 1001 (1989).
“The Swiss Conflicts Codification : An Introduction”, 37 Am. J. Comp. L. 187 (1989).
“Swiss Federal Statute on Private International Law of December 18, 1987 : An
English Translation” (with J. Cornu and S. Hankins), 37 Am. J. Comp. L. 193
(1989).
“Exploring the ‘Dismal Swamp’ : The Revision of Louisiana’s Conflicts Law on
Successions”, 47 La. L. Rev. 1029 (1987).
“Louisiana Conflicts Jurisprudence : An Introduction”, 47 La. L. Rev. 1105 (1987).
“Louisiana’s Draft on Successions and Marital Property”, 35 Am. J. Comp. L. 259
(1987).
“Developments in the Law, 1985-86 : Property”, 47 La. L. Rev. 429 (1987).
“In Search of New Choice-of-Law Solutions to Some Marital Property Problems of
Migrant Spouses : A Response to the Critics”, 13 (3) Comty. Prop. J. 11 (1986).
“Revolution and Counter-Revolution in American Conflicts Law : Is There a Middle
Ground ?”, 46 Ohio State LJ 549 (1985).
“Marginal Notes to the New Law of Possession and Acquisitive Prescription”,
30th Ann. Inst. Mineral L. 126 (1984).
“One Hundred Footnotes to the New Law of Possession and Acquisitive Prescription”,
44 La. L. Rev. 69 (1983).
“Maritime Conflicts of Law from the Perspective of Modern Choice of Law
Methodology”, 7 Tul. Mar. LJ 223 (1982).
“Zypern” (with Erik Jayme), in Internationales Ehe- und Kindschaftsrecht (Bergmann
and Ferid, eds., GmbH & Co. K.G., Frankfurt, 1979).
“The Interethnic and Interreligious Law of Cyprus : The Law of Mixed Marriages” (in
Greek) (Univ. of Thessaloniki L. Sch., 1972).
Essays
“The Full Faith and Credit Clause”, in Encyclopedia of Private International Law
(J. Basedow et al., eds., Elgar Pub., forthcoming 2017).
“The First and Second Conflicts Restatements”, in Encyclopedia of Private
International Law (J. Basedow et al., eds., Elgar Pub., forthcoming, 2017).
“Conflict of Laws” in International Encyclopedia of Social & Behavioral Sciences
(Elsevier, 2nd ed., 2012).
“A Dedication to Professor P. John Kozyris”, 58 Am. J. Comp. L. 221 (2010).
“Arthur Taylor von Mehren : A Career of Unassuming Excellence”, IPRax 261 (2007).
“Arthur Taylor von Mehren : A Gentle Giant”, 53 Am. J. Comp. L. 531 (2006).
“In Memoriam : Arthur Taylor von Mehren”, 119 Harv. L. Rev. 1962 (2006).
“In Memoriam Friedrich K. Juenger”, 35 UC-Davis L. Rev. 249 (2002).
“Conflict of Laws”, in Oxford Companion to American Law (K. L. Hall et al., eds.,
Oxford Univ. Press, 2001).
ABBREVIATIONS
Codif. : Refers to any choice-of-law statute, regardless of its formal designation as

an act, statute, decree, or ordinance, or code, or as a part of another code, such as a
civil code.
PIL : Private international Law
Abbreviated Publications
The following works are cited in abbreviated form as indicated before the colon.
Audit and d’Avout, DIP : B. Audit and L. d’Avout, Droit international privé (6th ed.,
2010).
Basedow, “Open Societies” : J. Basedow, “The Law of Open Societies : Private
Ordering and Public Regulation in the Conflict of Laws”, 360 Recueil des cours 9
(2013).
Beale, Treatise : J. Beale, Treatise on the Conflicts of Laws (1935).
Boele-Woelki, “Unifying and Harmonizing” : K. Boele-Woelki, “Unifying and
Harmonizing Substantive Law and the Role of Conflict of Laws”, 340 Recueil des
cours 271 (2009).
Bogdan, “Law of the Forum” : M. Bogdan, “Private International Law as Component
of the Law of the Forum”, 348 Recueil des cours 9 (2011).
Bucher, “La dimension sociale” : A. Bucher, “La dimension sociale du droit
international privé”, 341 Recueil des cours 9 (2009).
Cavers, Process : D. F. Cavers, The Choice of Law Process (1965).
Currie, Selected Essays : B. Currie, Selected Essays on the Conflict of Laws (1963).
De Boer, “Living Apart Together” : T. M. de Boer, “Living Apart Together : The
Relationship between Public and Private International Law”, 57 Neth. Int’l L. Rev.
183 (2010).
Dicey, Morris and Collins : L. Collins et al., Dicey, Morris and Collins on the Conflict
of Laws (15th ed., 2012).
Encyclopedia of PIL : J. Basedow et al. (eds.), Encyclopedia of PIL (2017).
Hay, Borchers and Symeonides, Conflict of Laws : P. Hay, P. Borchers and
S. Symeonides, Conflict of Laws (5th ed., 2010).
Juenger, Multistate Justice : F. K. Juenger, Choice of Law and Multistate Justice
(1993).
Kegel, “Crisis” : G. Kegel, “The Crisis of Conflict of Laws”, 112 Recueil des cours
91 (1964).
Kegel and Schurig, IPR : G. Kegel and K. Schurig, Internationales Privatrecht (9th
ed., 2004).
Maintenance Regulation : Council Regulation (EC) No. 4/2009 of 18 December 2008
on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and
Cooperation in Matters Relating to Maintenance Obligations, L 7/1 [2009] OJ
10.1.2009.
Martinek, “Seven Pillars” : M. Martinek, “The Seven Pillars of Wisdom in Private
International Law – The German and the Swiss Experience with the Codification of
Conflicts Law Rules”, Chinese Ybk. Priv. Int’l L. & Comp. L. 15 (2001).
McDougal, Felix and Whitten, American Conflicts : L. McDougal, R. Felix and
R. Whitten, American Conflicts Law (5th ed., 2001).
Mexico City Convention : Inter-American Convention on the Law Applicable to
International Contracts, Signed at Mexico, DF, Mexico, on 17 March 1994, at
the Fifth Inter-American Specialized Conference on Private International Law
(CIDIP-V).
Recueil des cours : Collected Courses of The Hague Academy of International
Law.
Restatement (First) : American Law Institute, Restatement of the Law : Conflict of

Laws (1934).
Restatement (Second) : American Law Institute, Restatement of the Law Second :
Conflict of Laws 2d (1971).
Restatement (Third) : American Law Institute, Restatement (Third) of Foreign
Relations Law of the United States (1986).
Rome Convention : Convention 80/934/ECC on the Law Applicable to Contractual
Obligations opened for signature in Rome on 19 June 1980, OJ L 266, 9.10.1980,
pp. 1-19.
Rome I : Regulation (EC) No. 593/2008 of the European Parliament and of the Council
of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I), [2008]
OJ L 177/6.
Rome II : Regulation (EC) No. 864/2007 of the European Parliament and of the
Council of 11 July 2007 on the Law Applicable to Non-Contractual Obligations
(Rome II), [2007] OJ L 199/40.
Rome III : Council Regulation (EU) No. 1259/2010 of 20 December 2010 implementing
enhanced co-operation in the area of the law applicable to divorce and legal
separation (OJ L 343, pp. 10 et seq.) (2010).
Savigny, Treatise : F. C. von Savigny, System des heutigen römischen Rechts (1849),
English translation by William Guthrie, under the title Private International Law,
A Treatise on the Conflict of Laws and the Limits of Their Operation in Respect of
Place and Time (1869).
Story, Commentaries : J. Story, Commentaries on the Conflict of Laws, Foreign and
Domestic, in Regard to Contracts, Rights and Remedies, and Especially in Regard
to Marriages, Wills, Successions, and Judgments (1834).
Struycken, “Co-ordination and Co-operation” : A. V. M. Struycken, “Co-ordination and
Co-operation in Respectful Disagreement. General Course on Private International
Law”, 311 Recueil des cours 5 (2004).
Successions Regulation : Regulation (EU) No. 650/2012 of the European Parliament
and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and
enforcement of decisions and acceptance and enforcement of authentic instruments
in matters of succession and on the creation of a European Certificate of Succession
(OJ L 201, pp. 107 et seq.).
Symeonides, “A New Conflicts Restatement” : S. Symeonides, “A New Conflicts
Restatement : Why Not ?”, 5 J. Priv. Int’l L. 383 (2009).
Symeonides, “Accommodative Unilateralism” : S. Symeonides, “Accommodative
Unilateralism as a Starting Premise in Choice of Law”, in H. Rasmussen-Bonne,
R. Freer, W. Lüke and W. Weitnauer (eds.), Balancing of Interests : Liber Amicorum
Peter Hay 417 (2005).
Symeonides, American PIL : S. Symeonides, American Private International Law
(2008).
Symeonides, “At the Dawn of the 21st Century” : S. Symeonides, “American Conflicts
Law at the Dawn of the 21st Century”, 37 Willamette L. Rev. (2000).
Symeonides, Codifying Choice of Law : S. Symeonides, Codifying Choice of Law
around the World : An International Comparative Analysis (2014).
Symeonides, “Cross-Border Torts” : S. Symeonides, “Choice of Law in Cross-Border
Torts : Why Plaintiffs Win, and Should”, 61 Hastings LJ 337 (2009).
Symeonides, “Les grands problèmes” : S. Symeonides, “Les grands problèmes de droit
international privé et la nouvelle codification de Louisiane”, 81 Rev. critique DIP
223 (1992).
Symeonides, “Louisiana Exegesis” : S. Symeonides, “Louisiana’s New Law of Choice
of Law for Tort Conflicts : An Exegesis”, 66 Tul. L. Rev. 677 (1992).
Symeonides, “Mixed Jurisdiction” : S. Symeonides, “Private International Law
Codification in a Mixed Jurisdiction : The Louisiana Experience”, 57 RabelsZ 460
(1993).
Symeonides, “Oregon Contracts Exegesis” : S. Symeonides, “Oregon’s Choice-of-
Law Codification for Contract Conflicts : An Exegesis”, 44 Willamette L. Rev. 205
(2007).
26 S. C. Symeonides
Symeonides, “Oregon Torts Exegesis” : S. Symeonides, “Oregon’s New Choice-of-

Law Codification for Tort Conflicts : An Exegesis”, 88 Or. L. Rev. 963 (2010).
Symeonides, Oxford Commentaries : S. Symeonides, Oxford Commentaries on
American Law : Choice of Law (2016)
Symeonides, “Party Autonomy” : S. Symeonides, “Party Autonomy in Rome I and II
from a Comparative Perspective”, 28 (2) Ned., IPR 191 (2010).
Symeonides, “PIL – USA” : S. Symeonides, “Private International Law : United States
of America”, in International Encyclopaedia of Laws (2015).
Symeonides, “Private Law-Making” : S. Symeonides, “Party Autonomy and Private
Law-Making in Private International Law : The Lex Mercatoria that Isn’t”, in
Festschrift für Konstantinos D. Kerameus 1397 (2009).
Symeonides, Progress or Regress : S. Symeonides, Private International Law at the
End of the 20th Century : Progress or Regress ? (2000).
Symeonides, “Reciprocal Lessons” : S. Symeonides, “The American Revolution and
the European Evolution in Choice of Law : Reciprocal Lessons”, 82 Tul. L. Rev.
1741 (2008).
Symeonides, “Revising Puerto Rico’s Conflicts Law” : S. Symeonides, “Revising
Puerto Rico’s Conflicts Law : A Preview”, 28 Colum. J. Transn’l L. 601 (1990).
Symeonides, Revolution : S. Symeonides, The American Choice-of-Law Revolution :
Past, Present and Future (2006).
Symeonides, “Rome II” : S. Symeonides, “Rome II and Tort Conflicts : A Missed
Opportunity”, 56 Am. J. Comp. L. 173 (2008).
Symeonides, “Territoriality and Personality” : S. Symeonides, “Territoriality and
Personality in Tort Conflicts”, in Intercontinental Cooperation through Private
International Law : Essays in Memory of Peter Nygh (T. Einhorn and K. Siehr,
eds.) 401 (2004).
Symeonides, “The ‘Dismal Swamp’ ” : S. Symeonides, “Exploring the ‘Dismal
Swamp’ : Revising Louisiana’s Conflicts Law on Successions”, 47 La. L. Rev.
1029 (1987) ;
Symeonides, “The Conflicts Book” : S. Symeonides, “The Conflicts Book of the
Louisiana Civil Code : Civilian, American, or Original ?”, 83 Tul. L. Rev. 1041
(2009).
Symeonides, “The First Conflicts Restatement” : S. Symeonides, “The First Conflicts
Restatement through the Eyes of Old : As Bad as Its Reputation ?”, 32 So. Ill. U.
LJ 39 (2007).
Symeonides, “The Hague Principles” : S. Symeonides, “The Hague Principles on
Choice of Law for International Contracts : Some Preliminary Comments”, 61 Am.
J. Comp. L. 873 (2013).
Symeonides, “The Need for a Third Conflicts Restatement” : S. Symeonides, “The
Need for a Third Conflicts Restatement (And a Proposal for Tort Conflicts)”, 75
Ind. LJ 437 (2000).
Symeonides, “The Puerto Rico Projet” : S. Symeonides, “Codifying Choice of Law
for Contracts : The Puerto Rico Projet”, in J. Nafziger and S. Symeonides (eds.),
Law and Justice in a Multistate World : Essays in Honor of Arthur T. von Mehren,
419 (2002).
Symeonides, “Two Surprises” : S. Symeonides, “Louisiana Conflicts Law : Two
‘Surprises’ ”, 54 La. L. Rev. 497 (1994).
Symeonides and Perdue, Conflict of Laws : S. Symeonides and W. Perdue, Conflict of
Laws : American, Comparative, International (3rd ed., 2012).
Vischer, “General Course” : F. Vischer, “General Course on Private International
Law”, 232 Recueil des cours 9 (1992).
Vrellis, “Conflit ou coordination” : S. Vrellis, “Conflit ou coordination de valeurs en
droit international privé – A la recherche de la justice”, 328 Recueil des cours 175
(2007).
Vrellis, “Introductory Observations” : S. Vrellis, “Introductory Observations to Private
International Law”, in A. S. Georgiadis and M. P. Stathopoulos (eds.), Civil Code,
Article by Article Interpretation (Vol. IA, 2016) (in Greek).
Weintraub, Commentary : R. Weintraub, Commentary on the Conflict of Laws

(6th ed., 2010).
List of PIL Codifications
Afghanistan : Civil Code of the Republic of Afghanistan, Arts. 3-35 (1977).
Albania : Law No. 10428 of 2 July 2011 on Private International Law.
Algeria : Algerian Civil Code, Arts. 9-24, as amended by Ordinance No. 75-58 of
26 September 1975.
Angola : Civil Code of Angola, Arts. 14-63, Law-Decree 496 of 25 November 1977.
Argentina : Commercial and Civil Code of the Argentine Republic of October 2014.
Armenia : Civil Code of Armenia as adopted in 1998, Division 12, Arts. 1253-1293.
Austria : Bundesgesetz vom 15.6.1978 über das internationale Privatrecht, as
subsequently amended.,
Azerbaijan : Law of 6 June 2000 on Private International Law.
Belarus : Civil Code of Belarus (Law of 7 December 1998, as amended on 28 De-
cember 28 2009), Arts. 1093-1136.
Belgium : Code de droit international privé (Loi du 16 juillet 2004).
Bosnia-Herzegovina : [Former Yugoslav] Act of 15 July 1982 on the Resolution of
Conflicts of Laws with Laws and Regulations of Other Countries in Certain Matters.
Bulgaria : Bulgarian Private International Law Code (Law No. 42 of 2005 as amended
by Law No. 59 of 2007).
Burkina Faso : Code of Persons and Family, Arts. 988-1050 (Law VII 0013 of 19 No-
vember 1989).
Burundi : Code of Persons and Family, Arts. 1-10, 94 (Decree-Law No. 1/1 of
15 January 1980 as revised by Decree-Law No. 1/024 of 28 April 1993).
Cape Verde : Civil Code of Cape Verde, Arts. 14-63, re-enacted by Legislative Decree
No. 12-C/97 of 30 June 1997.
Central African Republic : Law No. 65-71 of 3 June 1965 regarding the obligatory
force of laws and the conflict of laws in time and space, Arts. 38-45.
Chad : Ordinance No. 6 of 21 March 1967 for the Reform of Judicial Organization,
Arts. 70-72.
China : Statute of Application of Law to Foreign Civil Relations, adopted at the
17th session of the Standing Committee of the 11th National People’s Congress on
28 October 2010.
Congo-Brazzaville : Family Code, Arts. 38-39, 155, 819-832 (Law No. 073/1984 of
17.10.1984).
Costa Rica : Civil Code of Costa Rica, Arts. 23-30, as revised by Law No. 7020 of
6 January 1986.
Croatia : [Former Yugoslav] Act of 15 July 1982 on the Resolution of Conflicts of
Laws with Laws and Regulations of Other Countries in Certain Matters.
Cuba : Civil Code of 1987, Arts. 11-21, adopted by Law No. 59 of 16 July 1987.
Czech Republic : Law No. 91 of 25 January 2012 on Private International Law,
effective 1 January 2014.
Czechoslovakia : Act 97 of 1963 on Private International Law and Procedure.
Dominican Republic : Private International Law Act of the Dominican Republic of
5 December 2014.
East Timor : Civil Code of East Timor, Arts. 13-62, re-enacted by Law No. 10/2011
of 14 September 2011.
Ecuador : Ecuador Civil Code as revised by Law of 10 May 2005, Arts. 13-17, 43,
91-93, 103, 129, 137, 139, 1019, 1057-1058, 1087-1089, and 2337.
El Salvador : Civil Code of El Salvador, Arts. 14-18, 53-55, 617, 740, 966, 994-995,
1021, 1333, and 2160, as revised by Law-Decree No. 724, 30.09.1999.
Estonia : Private International Law Act of 27 March 2002.
Finland : Act on Law Applicable to Sale of Goods of International Character of 1964 ;
Marriage Act (Act 234/1929, as amended) ; Code of Inheritance (Act 40/1965 as
amended).
FYROM : (Former Yugoslav Republic of Macedonia) : Private International Law Act
of 4 July 2007.
28 S. C. Symeonides
Gabon : Civil Code, Arts. 25-77 (Law No. 15/1972 of 29.7.1972 adopting Part I of
Civil Code).
Georgia : Act No. 1362 of 29 April 1998 on Private International Law.
Germany : Gesetz zur Neuregelung des IPR vom 25.7.1986 ; Gesetz zum IPR für
außervertragliche Schuldverhältnisse und das Sachenrecht vom 21.5.1999.
Guatemala : Ley del Organism Judicial, Arts. 21-35 (Decreto 2-89, of 18.3.1989).
Guinea-Bissau : Civil Code of Guinea-Bissau, Arts. 14-65, re-enacted by Guinea-
Bissau Law No. 1/73 of 27 September 1973.
Hungary : Law-Decree No. 13 of 1979 on Private International Law.
Italy : Act No. 218 of 31 May 1995 (Riforma del sistema italiano di diritto internazionale
privato).
Japan : Law No. 10 of 1898 as Newly Titled and Amended on 21 June 2006, effective
1 January 2007, on the General Rules of Application of Laws.
Jordan : Jordanian Civil Code of 1 August 1976, Arts. 1-3, 11-29.
Kazakhstan : Civil Code of the Republic of Kazakhstan, Arts. 1158-1124, enacted by
Law No. 409-1 ZRK of 1 July 1999.
Korea (North) : The Law of the Democratic People’s Republic of Korea on External
Civil Relations, adopted by Resolution No. 62 of the Standing Committee of
the Supreme People’s Assembly on 6 September 1995, and amended by Decree
No. 251 of the Presidium of the Supreme People’s Assembly on 10 December
1998.
Korea (South) : Law 6465 of 7 April 2001, Amending the Conflict of Laws Act of the
Republic of Korea.
Kyrgyzstan : Law of 5 January 1998 revising Civil Code, Arts. 1167-1208.
Latvia : Latvian Civil Code (1993), Arts. 8-25.
Liechtenstein : Private International Law Act of 1996.
Lithuania : Civil Code of the Republic of Lithuania of 2000, Arts. 1.10-1.62.
Louisiana : Book IV of the Louisiana Civil Code, enacted by La. Act No. 923 of 1991.
Macau : Civil Code of Macau, Arts. 13-62, Approved by Law-Decree No. 39/99 of
3 August 1999.
Madagascar : Arts. 20-35, Ordonnance No. 62-041 du 19 septembre 1962 relative aux
dispositions générales de droit interne et de droit international privé, complétée par
la loi no. 98-019 du 2 décembre 1998.
Mauritania : Code des Obligations et des Contrats, Arts 6-11 (Ordonnance No. 89-126
du 14 septembre 1989).
Mexico : Arts. 12-15, 29-34, 2736-2738 of Civil Code for the Federal District in
Ordinary Matters and for the Entire Republic in Federal Matters, as amended by
Decree of 11 December 1987.
Moldova : Moldova Civil Code (Law 1107 of 6 June 2002), Arts. 1578-1625.
Mongolia : Mongolian Civil Code, Arts. 539-552, enacted 2 January 2002.
Montenegro : International Private Law Act of 23 December 2013.
Mozambique : Mozambique Civil Code, Arts. 14-65, enacted by Portuguese Ordinance
No. 22,869 of 4 September 1967.
Netherlands : Act of 19 May 2011 adopting and implementing Book 10 (Private
International Law) of the Dutch Civil Code.
Oregon : Or. Rev. Stat. §§ 15.300-15.380 (2001) ; Or. Rev. Stat. §§ 15.400B15.460
(2009).
Panama : Panama Civil Code, Arts. 1, 5-8, 631-32, 765-770, as revised by Law
No. 18 of 1992.
Paraguay : Civil Code of Paraguay as revised by Law No. 1183 of 18 December 1985,
Arts. 11-26, 101, 132-136, 163-167, 177-178, 297, 699, 1196, 1199, 2184, 2447-
2448, 2609, and 2626.
Peru : Peruvian Civil Code of 1984, Book X, Arts. 2046-2111.
Poland : Act of Private International Law of 4 February 2011.
Portugal : Portuguese Civil Code, Arts. 14-65, as revised in 1966 and subsequently.
Puerto Rico : Proyecto de Ley para la Revisión y Reforma del Código Civil De Puerto
Rico, Libro Séptimo (Derecho Internacional Privado), 25 de mayo 2002.
Qatar : Arts. 10-38 of the Civil Code of Qatar, as amended by law 22/2004 of 8 August
2004.
Quebec : LQ 1991, ch. 64, composing Book Ten of the Quebec Civil Code (Arts. 3076-
3168).
Romania : Civil Code (Law 287/2009 as amended and supplemented by Law 71/2011
of 10 June 2011).
Russia : Civil Code of the Russian Federation, Part III, Arts. 1186-1224, enacted by
Federal law No. 146 of 26 November 2001.
Rwanda : Law No. 42/1988 (Preliminary Title and First Book of the Civil Code) in
force since 1 May 1992.
Senegal : Family Code of Senegal, Arts. 840-854, Law No. 76-61 of June 1972.
Serbia : Serbian Ministry of Justice Draft of 20 July 2012 on Private International
Law Code.
Slovakia : Czechoslovakian Act 97 of 1963 on Private International Law and Procedure,
as subsequently amended.
Slovenia : Private International Law and Procedure Act of 30 June 1999.
Somalia : Civil Code of Somalia, Arts. 10-28, Law No. 37 of 2 July 1973.
Spain : Spanish Civil Code, Arts. 8-16, as revised in 1974 and subsequently.
Sudan : Civil Code of Sudan, Arts. 10-16, 655, 684, Law of 24 May 1971 as amended
by Law of 14 February 1984.
Switzerland : Bundesgesetz über das Internationale Privatrecht (IPRG) vom 18. De-
zember 1987 – Loi féderale sur le droit international privé (LDIP) du 18 décembre
1987.
Taiwan : Act Governing the Application of Laws in Civil Matters Involving Foreign
Elements, promulgated on 26 May 2010.
Tajikistan : Civil Code of the Republic of Tajikistan, Arts. 1191-1234, enacted by Law
No. 3 of 1 March 2005.
Tunisia : Code of Private International Law (Law No. 98-97 of 27 November 1998).
Turkey : Law No. 5718 of 27 November 2007 adopting the Turkish Code of Private
International Law and International Civil Procedure.
UAE (United Arab Emirates) : Code of Civil Transactions of the United Arab
Emirates, Arts. 1-3, 10-18.
Ukraine : Law of 23 June 2005 No. 2709-IV on Private International Law, as
subsequently amended.
United Kingdom : Private International Law (Miscellaneous Provisions) Act of
8 November 1995 (c. 42).
Uruguay : Proyecto de Ley General de Derecho Internacional Privado, 19.1.2009.
Uzbekistan : Civil Code of the Republic of Uzbekistan, Arts. 1158-1199, enacted by
Law 257-I of 29.08.1996.
Venezuela : Act of 6 August 1998 on Private International Law.
Vietnam : Civil Code of the Socialist Republic of Vietnam of 1995, Arts. 826-838.
Yemen : Law of 29 March 1992 on Private International Law.
Yugoslavia : Act of 15 July 1982 on the Resolution of Conflicts of Laws with Laws
and Regulations of Other Countries in Certain Matters.
List of EU Regulations (and Conventions)
Brussels Convention : Brussels Convention of 27 September 1968 on Jurisdiction and
the Enforcement of Judgments in Civil and Commercial Matters.
Lugano Convention : Convention on Jurisdiction and the Enforcement of Judgments in
Civil and Commercial Matters, Done at Lugano on 16 September 1988.
Brussels I Regulation : European Community Council Regulation (EC) No. 44/2001 of
22 December 2001 on Jurisdiction and the Recognition of Judgments in Civil and
Commercial Matters.
Brussels IIbis (IIA) Regulation : Council Regulation (EC) No. 2201/2003 of 27 No-
vember 2003 concerning jurisdiction and the recognition and enforcement of
judgments in matrimonial matters and the matters of parental responsibility.
Insolvency Regulation : Council Regulation (EC) No. 1346/2000 of 29 May 2000 on
Insolvency Proceedings.
30 S. C. Symeonides
Maintenance Regulation : Council Regulation (EC) No. 4/2009 of 18 December 2008

on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and
Co-operation in Matters relating to Maintenance Obligations.
Rome I Regulation : Regulation (EC) No. 593/2008 of the European Parliament and
of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations
(Rome I).
Rome II Regulation : Regulation (EC) No. 864/2007 of the European Parliament
and of the Council of 11 July 2007 on the Law Applicable to Non-Contractual
Obligations (Rome II).
Rome III Regulation : Council Regulation (EU) No. 1259/2010 of 20 December 2010
implementing enhanced co-operation in the area of the law applicable to divorce
and legal separation.
Successions Regulation : Regulation (EU) No. 650/2012 of the European Parliament
and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and
enforcement of decisions and acceptance and enforcement of authentic instruments
in matters of succession and on the creation of a European Certificate of Succession.
List of International Conventions
I. Hague Conventions
Access to Justice : Hague Convention of 25 October 1980 on International Access to
Justice.
Administration of Estates : Hague Convention of 2 October 1973 concerning the
International Administration of the Estates of Deceased Persons.
Adoption : Hague Convention of 15 November 1965 on Jurisdiction, Applicable Law
and Recognition of Decrees Relating to Adoptions.
Adoption : Hague Convention of 29 May 1993 on Protection of Children and
Co-operation in Respect of Intercountry Adoption.
Agency : Hague Convention of 14 March 1978 on the Law Applicable to Agency.
Child Abduction : Hague Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction.
Child Support : Hague Convention of 23 November 2007 on the International Recovery
of Child Support and Other Forms of Family Maintenance.
Choice of Court : Hague Convention of 30 June 2005 on Choice of Court Agreements.
Contracts : Hague Choice of Law Principles for International Contracts, Approved by
the Special Commission on 12-16 November 2012.
Divorce : Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal
Separations.
Evidence : Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in
Civil or Commercial Matters.
Foreign Judgments : Hague Convention of 1 February 1971 on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial Matters.
Legalization : Hague Convention of 5 October 1961 Abolishing the Requirement of
Legalisation for Foreign Public Documents.
Maintenance : Hague Convention of 2 October 1973 on the Law Applicable to
Maintenance Obligations.
Maintenance Protocol : Hague Protocol of 23 November 2007 on the Law Applicable
to Maintenance Obligations.
Matrimonial Property : Hague Convention of 14 March 1978 on the Law Applicable
to Matrimonial Property Regimes.
Marriage : Hague Convention of 14 March 1978 on Celebration and Recognition of
the Validity of Marriages.
Parental Responsibility : Hague Convention of 19 October 1996 on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental
Responsibility and Measures for the Protection of Children.
Products Liability : Hague Convention of 2 October 1973 on the Law Applicable to
Products Liability.
Sales : Hague Convention of 22 December 1986 on the Law Applicable to Contracts

for the International Sale of Goods.
Protection of Adults : Hague Convention of 13 January 2000 on the International
Protection of Adults.
Protection of Infants : Hague Convention of 5 October 1961 concerning the Powers of
Authorities and the Law Applicable in Respect of the Protection of Infants.
Securities : Hague Convention of 5 July 2006 on the Law Applicable to Certain Rights
in Respect of Securities held with an Intermediary.
Service of Documents : Hague Convention of 15 November 1965 on the Service
Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters.
Successions : Hague Convention of 1 August 1989 on the Law Applicable to Succession
to the Estates of Deceased Persons.
Testamentary Form : Hague Convention of 5 October 1961 on the Conflicts of Laws
Relating to the Form of Testamentary Dispositions.
Traffic Accidents : Hague Convention of 4 May 1971 on the Law Applicable to Traffic
Accidents.
Trusts : Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on
Their Recognition.
II. Inter-American Conventions
Adoption : Inter-American Convention on Conflict of Laws concerning the Adoption
of Minors (1984).
Arbitration : Inter-American Convention on International Commercial Arbitration
(1975).
Bills of Exchange : Inter-American Convention on Conflict of Laws concerning Bills
of Exchange, Promissory Notes, and Invoices (1975).
Capacity : Inter-American Convention on Personality and Capacity of Juridical
Persons in Private International Law (1984).
Carriage of Goods : Inter-American Convention on Contracts for the International
Carriage of Goods by Road (1989).
Carriage of Goods : Negotiable Inter-American Uniform through Bill of Lading for the
International Carriage of Goods by Road (2002).
Carriage of Goods : Non-Negotiable Inter-American Uniform through Bill of Lading
for the International Carriage of Goods by Road (2002).
Checks : Inter-American Convention on Conflict of Laws concerning Checks (1975).
Checks : Inter-American Convention on Conflicts of Laws concerning Checks (1979).
Contracts : See “Mexico City Convention”.
Companies : Inter-American Convention on Conflicts of Laws concerning Commercial
Companies (1979).
Domicile : Inter-American Convention on the Domicile of Natural Persons in Private
International Law (1979).
Evidence : Inter-American Convention on the Taking of Evidence Abroad (1975).
Evidence Protocol : Additional Protocol to the Inter-American Convention on the
Taking of Evidence Abroad (1984).
Foreign Law Proof : Inter-American Convention on Proof and Information on Foreign
Law (1979).
General Rules of PIL : Inter-American Convention on General Rules of Private
International Law, done at Montevideo, Uruguay, on 8 May 1979.
Judgments and Arbitral Awards : Inter-American Convention on Extraterritorial
Validity of Foreign Judgments and Arbitral Awards (1979).
Jurisdiction and Judgments : Inter-American Convention on Jurisdiction in the
International Sphere for the Extraterritorial Validity of Foreign Judgments (1984).
Letters Rogatory : Inter-American Convention on Letters Rogatory (1975).
Letters Rogatory Protocol : Additional Protocol to the Inter-American Convention on
Letters Rogatory (1979).
“Mexico City Convention” : Inter-American Convention on the Law Applicable to
International Contracts, Signed at Mexico, DF, Mexico, on 17 March 1994.
32 S. C. Symeonides
Powers of Attorney : Inter-American Convention on the Legal Regime of Powers of

Attorney to Be Used Abroad (1975).
Preventive Measures : Inter-American Convention on Execution of Preventive
Measures (1979).
Return of Children : Inter-American Convention on International Return of Children
(1989).
Secured Transactions : Model Inter-American Law on Secured Transactions (2002).
Support : Inter-American Convention on Support Obligations (1989).
Traffic in Minors : Inter-American Convention on International Traffic in Minors
(1994).

INTRODUCTION
This volume is written in fulfilment of the requirements of The Hague

Academy of International Law for teaching the “General Course” on
Private International Law (hereinafter PIL). “General courses . . . at the
Hague Academy are supposed to have an elderly teacher and a general
theme.” 1 This volume meets the first requirement and exceeds the
second, in that its theme is as general as it can be. It explores the extent
to which the classical PIL model 2 articulated by Friedrich Carl von
Savigny, Justice Joseph Story, and other nineteenth-century scholars
corresponds to and can cope with contemporary realities.
Chapter I revisits the historical foundations of PIL, focusing
particularly on the nineteenth century, our discipline’s Golden Age,
when Savigny formulated what later became the classical PIL model.
Chapter II discusses the “substantivist” method of avoiding or resolving
multistate conflicts by unifying or harmonizing the substantive laws of
the involved states 3.
The rest of this volume focuses on the principal PIL approach – the
“selectivist” method – which attempts to resolve these conflicts by
selecting the substantive law of one of the involved states. Chap-
ters III and IV explore the extent to which PIL is truly “private” and
“international” law, the assumptions undergirding these terms, as well
as the assumptions underlying the term “conflict of laws”, by which this
subject is known in some parts of the world. Chapter V examines the
historical competition between the two main branches of the selectivist
method – unilateralism and multilateralism – and the extent to which
they co-exist in contemporary PIL. Chapter VI discusses the question
of whether, in devising solutions for conflicts of laws, PIL should aim
for the law of the proper state (“conflicts justice”) or the law that will
produce the proper substantive result (“material justice”).
1. G. Gaja, “The Protection of General Interests in the International Community :

General Course on Public International Law”, 364 Recueil des cours, 9, 19 (2012).
2. The discussion is limited to the choice-of-law part of PIL. It does not cover
jurisdiction, recognition of judgments, or other topics such as the law of aliens, which
are included within the scope of this subject in some countries.
3. Hereinafter, the word “state” denotes any country or a territorial subdivision of a
country – such as a state, province, or region of a federal or other plurilegal country –
that has its own system of private law.
34 S. C. Symeonides
Chapters VII and VIII discuss two relatively recent phenomena

in choice-of-law methodology. The first is the introduction of “soft”
connecting factors and escape clauses in recent PIL codifications, both
of which inject considerable flexibility into the choice-of-law process.
The second phenomenon is the narrowing of the scope of choice-
of-law rules. Unlike the traditional rules, which covered broad legal
categories such as torts or contracts, many of the new rules focus on
narrower issues and thus may lead to the application of different laws
to different issues in the same legal category (dépeçage). While both
of these developments have enriched choice-of-law methodology, they
also make the attainment of international uniformity, which was the
principal goal of the classical PIL system, even more difficult. Chap-
ter IX summarizes this course’s findings and states its conclusions.
Finally, one clarification. This volume is not about American PIL as
such 4, although it often discusses the challenges that American PIL has
posed to the classical model in the last 50 years. Rather, the volume is
about the current state of our discipline internationally. But as Albert
Einstein said, “What you see depends on where you stand.” Einstein
was referring to the physical world, of course, but this old saying applies
with equal force to the non-physical world 5. Our perceptions are shaped
by our schooling, training, type and place of work, social and cultural
environment, even geography. Although I received my legal training in
both Europe and the United States and have worked for short periods
in Europe, I have spent the past two-thirds of my life teaching in the
United States. I believe that my standpoint is international, but I would
not blame those readers who conclude that this volume is written from
the American perspective.
4. For volumes on American PIL by this author, see S. Symeonides, Oxford

Commentaries on American Law : Choice of Law (2016) (hereinafter Symeonides,
Oxford Commentaries) ; S. Symeonides, “Private International Law : United States of
America”, in International Encyclopaedia of Laws (2015) (hereinafter Symeonides,
“PIL-USA”) ; S. Symeonides, The American Choice-of-Law Revolution : Past, Present
and Future (2006) (hereinafter Symeonides, Revolution).
5. J. L. Hochschild, “Where You Stand Depends on What You See : Connections
among Values, Perceptions of Fact, and Political Prescriptions”, in J. Kuklinski (ed.),
Citizens and Politics : Perspectives from Political Psychology 313 (2001).
CHAPTER I
HISTORICAL FOUNDATIONS
Section 1. Introduction
In the tradition of The Hague Academy, a “general course” on

Private International Law usually begins with its history. This course
is no exception. Thus, the introductory chapter provides a brief account
of early PIL doctrine, focusing primarily on the choice-of-law part.
Although this undertaking entails “the pursuit of anachronistic mediaeval
subtleties” 6, which few students find exciting, basic familiarity
with the doctrinal beginnings of PIL is essential to understanding,
evaluating, and improving today’s system. This system is the result of
the evolution and modification of the classical system, which was built
in the nineteenth century on foundations laid by scholars in that and
previous centuries. Proceeding on the premise that one must know the
past to understand the present 7, this chapter attempts to assist those
readers whose knowledge or recollection of those writings may need
reinforcement 8.
6. U. Baxi, “Mass Torts, Multinational Enterprise Liability and Private International
Law”, 276 Recueil des cours 297, 305 (1999) (“Almost nothing . . . in the tradition
of legal studies is as exciting as the pursuit of anachronistic mediaeval subtleties that
private international law brings by way of embarrassment de riches to the community
of its reflexive practitioners”).
7. Paraphrasing Dr. Carl Sagan (“You have to know the past to understand the
present”).
8. In addition to the sources cited later in this chapter, the following publications
discuss in greater detail some aspects of PIL history : M. Gutzwiller, Geschichte des Inter-
nationalprivatrechts : Von den Anfängen bis zu den großen Privatrechtskodifikationen
(1977) ; N. E. Hatzimihail, Preclassical Conflict of Laws (2015) ; A. Lainé, Introduction
au droit international privé contenant une étude historique et critique de la théorie
des statuts (1888) ; L. Collins, “Comity in Modern Private International Law”, in
J. Fawcett (ed.), Reform and Development of Private International Law 89 (2002) ;
R. de Nova, “Historical and Comparative Introduction to Conflict of Laws”, 118 Recueil
des cours 435 (1966) ; S. L. Guterman, “The Principle of the Personality of Law in the
Early Middle Ages : A Chapter in the Evolution of Western Institutions and Ideas”,
21 U. Miami L. Rev. 259 (1966) ; M. Gutzwiller, “Le développement historique du droit
international privé”, 29 Recueil des cours 348 (1929) ; G. Hamza, “Some Reflections
on the History of Private International Law”, 34 Act. Jur. Acad. Sci. Hung. 195 (1992) ;
N. Hatzimihail, “Pages of History : Friedrich Juenger and the Historical Consciousness
of Modern Private International Law”, in L. Pereznieto Castro, T. Treves and F. Seatzu
(eds.), Tradition and Innovation of Private International Law at the Beginning of the
36 S. C. Symeonides
The history of PIL is one of continuous change, resulting from a three-

dimensional and dialectical interaction among competing philosophical
doctrines and changing social and economic conditions and needs 9. As
Fritz Juenger reminds us, “The past . . . yield[s] an astonishingly rich
accumulation of ideas, which still guide present theory and practice” 10,
even if “[E]verything worthy of trying has been tried, under the same or
Third Millennium : Liber in Memoriam of Professor Friedrich K. Juenger 81 (2006) ;

E. Jayme, “Considérations historiques et actuelles sur la codification du droit
international privé”, 177 Recueil des cours 9 (1982) ; K. Lipstein, “The General
Principles of Private International Law”, 135 Recueil des cours 97 (1972) ; E. Lorenzen,
“Story’s Commentaries on the Conflict of Laws – One Hundred Years After”, 48 Harv.
L. Rev. 15 (1934) ; E. M. Meijers, “L’histoire des principes fondamentaux du droit
international privé à partir du Moyen Age spécialement dans l’Europe occidentale”,
49 Recueil des cours 543 (1934) ; A. Mills, “The Private History of International
Law”, 55 Int’l & Comp. LQ 1 (2006) ; A. Nussbaum, “Rise and Decline of the Law-
of-Nations Doctrine in the Conflict of Laws”, 42 Colum. L. Rev. 189 (1942) ;
M. Reimann, “Savigny’s Triumph ? Choice of Law in Contracts Cases at the Close
of the Twentieth Century”, 39 Va. J. Int’l L. 571 (1999) ; A. N. Sack, “Conflicts of
Laws in the History of English Law”, in A. Reppy (ed.), Law : A Century of Progress
1835-1935, Vol. 3, 344 (1937) ; K. Siehr, “Private International Law, History of”, in
J. Basedow et al. (eds.), Encyclopedia of PIL (2017) ; H. Valladão, “The Influence
of Joseph Story on Latin-American Rules of Conflict of Laws”, 3 Am. J. Comp. L.
27 (1954) ; H. Yntema, “The Historic Bases of Private International Law”, 2 Am.
J. Comp. L. 297 (1953) ; H. Yntema, “The Comity Doctrine”, 65 Mich. L. Rev. 9
(1966).
9. See H. Muir Watt, “Aspects économiques du droit international privé”, 307
Recueil des cours 25, 39-41 (2005) :
“L’histoire de la discipline est ainsi marquée par l’emprise successive de
différentes doctrines relatives aux rapports qu’entretient le droit avec le pouvoir
de contrainte territoriale du souverain, à sa vocation à l’universalité, ou encore à la
séparation étanche qu’il opère entre les domaines public et privé. De telles idées,
qui conduisent à envisager les relations mutuelles des lois nationales tour à tour
en termes de cloisonnement étanche, de symbiose, de coopération, de concurrence
ou d’affrontement, influent à leur tour sur la méthodologie mise en ouvre en
vue d’en assurer la coexistence. Tantôt sont privilégiés les intérêts des Etats,
tantôt ceux des individus, élargissant ou restreignant par là même le domaine
du droit international privé, et ouvrant ou fermant selon les cas la passerelle qui
relie les conflits de lois de droit privé au droit de la répartition des compétences
étatiques dans l’ordre international public. Nourrie par des données changeantes,
qu’elles soient idéologiques, philosophiques, culturelles, politiques, matérielles
ou structurelles, ces différentes conceptions entretiennent entre ells un rapport
dialectique. Territorialisme ou personnalisme, cloisonnement institutionnel ou
communauté de droit, intérêts étatiques ou intérêts privés, unilatéralisme ou
multilatéralisme, neutralité ou politisation, répartition ou régulation, primauté
du conflit de lois ou prevalence de la dimension juridictionnelle des conflits : les
oppositions se succèdent et se croisent dans un effort constant de mieux gérer la
diversité des droits, que ce soit au bénéfice de l’épanouissement des rapports privés
ou de la coexistence pacifique des souverainetés, dans un monde économiquement
et socialement interconnecté.”
10. F. K. Juenger, Choice of Law and Multistate Justice 6 (1993) (hereinafter
Juenger, Multistate Justice).
other labels” 11, or “[T]he same components of conflicts solutions have

been sorted out, combined and re-used for new constructions.” 12
Section 2. From Ancient Greece to Medieval Italy
The prevailing opinion among western authors is that PIL originated

in the fourteenth century in Northern Italy 13. But conflicts problems
existed (and solutions were devised) in much earlier times. Although
the historical record is incomplete, some evidence of those solutions
has survived. For instance, in addressing a court in the Greek island-
state of Aegina, the Athenian orator Isocrates (436-358 bc) argued that
the court should uphold his client’s testament because it conformed to
the laws of both the forum and the testator’s home state (the island
of Sifnos) 14. A compact between the Greek city-states of Sardis and
Ephesus issued circa 100 bc assigned tort claims to the jurisdiction
of the tortfeasor’s home state and subjected them to that state’s law 15.
Similarly, a Ptolemaic decree issued in Hellenistic Egypt circa 120 bc
provided that contracts written in Greek were subject to the jurisdiction
of Greek courts and governed by Greek law, whereas contracts written
in the Egyptian language were subject to the jurisdiction of Egyptian
courts and governed by Egyptian law 16.
Interestingly, both the Greek compact and the Egyptian decree
attached the choice-of-law question to the jurisdictional question
11. K. Nadelmann, “Marginal Remarks on the New Trends in American Conflicts

Law”, 28 Law & Contemp. Probs. 860 (1963).
12. F. Vischer, “General Course on Private International Law”, 232 Recueil des
cours 9, 23 (1992) (hereinafter Vischer, “General Course”).
13. See H. J. Berman, “Is Conflict-of-Laws Becoming Passé ? An Historical
Response”, in H.-E. Rasmussen-Bonne, R. Freer, W. Lüke and W. Weitnauer (eds.),
Balancing of Interests : Liber Amicorum Peter Hay 43, 47 (2005) (“It seems that
neither Roman nor Greek law applied foreign law in cases involving only their own
citizens, although both the Roman Empire and Greece had special courts for cases in
which the parties were foreigners. In general, the ‘personality principle’ applied, not
the ‘territoriality principle’. Nor did European courts prior to the twelfth century have
rules for applying foreign law”).
14. See Isocrates, Aeginiticus 19.16. For an analysis of Aeginiticus, see I. Maridakis,
Ibidiotikon Diethnes Dikaion, 119 et seq. (1967). For earlier evidence of the existence
of choice-of-law rules dating back to the sixth century bc, see C. Papastathis, “Problems
of Choice of Law in Sixth Century Greece : Contribution to the Study of the Pre-history
of European Private International Law”, Rev. hellénique de droit européen 531 (1982).
15. See D. Evrigenis, Ibidiotikon Diethnes Dikaion, 50-51 (1968) ; A. Grammati-
kaki-Alexiou, Z. Papassiopi-Passia and E. Vassilakakis, Ibidiotikon Diethnes Dikaion,
6-7 (3rd ed., 2002).
16. See Juenger, Multistate Justice 7-8 ; H. Lewald, “Conflits de lois dans le monde
grec et romain”, 57 Rev. critique dr. int’l privé 419, 437 (1968).
38 S. C. Symeonides
and answered both through a pre-established rule. By contrast, the

Romans detached the two questions and addressed only the question
of jurisdiction. Roman law vested a special official – the praetor
peregrinus – with jurisdiction over disputes involving non-Roman
citizens, but was silent on the question of which law should govern
those disputes. Left to their own devices, the praetors came up with
the idea that, rather than choosing the law of one of the parties’ home
states, he would draw from both states’ laws to construct an ad hoc
substantive rule for the case at hand. Thus, for the first time, multistate
disputes were resolved not through a choice of law, but rather through
the creation of new substantive law applicable only to those disputes.
The law created through this substantivist method, later called jus
gentium, was gradually incorporated into the jus civile (the law that
governed relations between Roman citizens), and both were eventually
codified by Emperor Justinian in his Digest (533 ad). In the meantime
(212 ad), Roman law had accorded Roman citizenship to most of the
Empire’s inhabitants and, by Justinian’s time, the Empire encompassed
much of the trading world. Conflicts between Roman and non-Roman
laws became far less frequent and, perhaps for that reason, the Digest
did not contain any provisions on choice of law.
Section 3. Early Footings : Bartolus, Statutists, and Unilateralism

By the twelfth century ad, when the Italian scholars known as
Glossators (1100-1250) “re-discovered” Justinian’s Digest, the social
and economic environment had changed dramatically. Although the
Digest – supplemented by the new jus commune, or common law,
which derived from the Digest – was the overarching “general law” for
all of Italy, the city-states of Northern Italy began to develop their own
diverging local customs and laws (statuta). The increase of trade among
these city-states began to generate new “interstate” conflicts of laws.
For example, “If a merchant from Bologna was sued in Modena, should
he be judged by the statutes of the former or the latter city ?”, asked
the famous Glossator Accursius (1182-1263) in his Glossa ordinaria
(1228). The need to address such questions became increasingly
pressing.
For more than a century, several Glossators and their successors,
the Commentators (1250-1400), wrestled with conflicts questions 17.
17. For the statutists, see B. Audit, “Le droit internationale privé en quête
d’universalité”, 305 Recueil des cours 9, 148-161 (2003) ; N. E. Hatzimihail, Preclassical
One Commentator, Bartolus of Sassoferrato (1313-1357), attempted to

provide answers 18. However, as a loyal and careful Romanist, Bartolus
recognized that in order for these answers to have any authority, they had
to be grounded in Justinian’s law. Although Justinian had said virtually
nothing on the subject explicitly, Bartolus discovered a way to make it
appear that these answers were implicit in Justinian’s Code – in fact, in
the very first sentence of it. This sentence provides : “Cunctos populos,
quos clementiae nostrae regit temperamentum, in tali volumus religione
versari, quam divinum Petrum apostolum traditisse Romanis.” 19
Literally translated, the sentence states, “All peoples who are subject to
our merciful sway, we desire them to live under that religion which the
divine apostle Peter has delivered to the Romans.”
On its face, this sentence has nothing to do with secular law, much
less conflicts law. It simply restates the emperor’s command for all
peoples under his power to adopt the Christian religion. But notice
that the emperor speaks only of people under his “merciful sway” ; that
is, under his power or “jurisdiction” as we would say today. Bartolus
read this sentence as an acknowledgment by the emperor/law-giver of
a limitation on his own power, and thus as an implicit delineation of
the scope of Roman law vis-à-vis foreign law. If Roman law governed
only those under the emperor’s sway, then those beyond his sway must
be governed by the law of their own sovereign 20. From this elementary
proposition, Bartolus began to construct principles for delineating
the reach of Roman and non-Roman laws, and for resolving conflicts
between the statuta of the Italian city-states 21.
Conflict of Laws (2015) ; Juenger, Multistate Justice 10-19 ; H. Kantorowicz and

W. W. Buckland, Studies in the Glossators of the Roman Law : Newly Discovered
Writing of the 12th Century (1938) ; P. Stein, Roman Law in European History 45-49
(1999) ; R. de Nova, “Historical and Comparative Introduction to Conflict of Laws”,
118 Recueil des cours 443 (1966).
18. For discussions of Bartolus, see, e.g., C. N. S. Woolf, Bartolus of Sassoferrato :
His Position in the History of Medieval Political Thought (1913) ; P. Franzina,
“Bartolus de Sassoferrato”, in J. Basedow et al. (eds.), Encyclopedia of PIL (2017) ;
N. E. Hatzimihail, “Bartolus and the Conflict of Laws”, 60 Rev. hellénique dr. int’l
11 (2007) ; A. P. Miceli, “Bartolus of Sassoferrato”, 37 La. L. Rev. 1027 (1977). For
translations of Bartolus’s work, see Bartolo (of Sassoferrato), Bartolus on the Conflict
of Laws (H. J. Beale, trans., 1914) ; Bartolus (Clarence Smith, trans.), “Commentarii in
Lex Cunctos Populos”, 14 Am. J. Legal Hist. 154 (1970).
19. Codex 1.1.1. This sentence restated the Edict of Thessalonika of 380, by which
co-emperors Theodosius I and Gratian established Nicene Christianity as the official
religion of the Roman-Byzantine Empire.
20. See Bartolus (Clarence Smith, trans.), “Commentarii in Lex Cunctos Populos”,
14 Am. J. Legal Hist. 154, 174-183, 247-275 (1970).
21. These “intra-Roman” conflicts presented a more difficult problem for Bartolus.
First, he had to answer the question of whether the Digest even permitted city-states to
40 S. C. Symeonides
Bartolus, along with later scholars collectively known as “statutists”,

re-introduced the “selectivist” method for resolving conflicts of laws 22,
a method that brought back the notion of choosing between the
conflicting laws rather than blending them as the praetor peregrinus had
done. The statutists employed the “unilateral” version of the selectivist
method rather than the “bilateral”, or “multilateral”, version, which was
introduced later in history 23. The latter version focuses on multistate
legal relations and, through a priori choice-of-law rules, assigns each
relation to the law of the state with which it has a designated connection.
By contrast, the unilateral version approaches the matter from the other
end. It focuses on the conflicting substantive laws themselves and tries
to determine whether the legal relation hand falls within the intended
reach of the law of one or the other law.
Bartolus explained his understanding regarding the spatial operation
of laws by : (1) differentiating among several categories of statutes, such
as prohibitive (further subdivided into benevolent and malevolent),
permissive, and punitive ; and (2) discussing the operation of those
statutes in several categories of cases, such as contracts, torts, property,
and testaments 24. However, the classification that attracted the most
attention and outlived Bartolus was that between real and personal
statutes. Real statutes were those that operated only within the territory
of the enacting state, not beyond. By contrast, personal statutes operated
beyond the territory of the enacting state and bound all persons who
owed allegiance to it 25.
Unfortunately, though understandably for that time, the statutists’
criteria for classifying a statute as real or personal relied excessively
adopt laws that diverged from the general law of the Digest. He answered the question
affirmatively by stretching the meaning of a provision of the Digest (D.1.3.32) that
recognized the authority of local customs and – Bartolus postulated – local statutes.
He then proposed that conflicts between these statutes be resolved through the same
principles of conflicts resolution that he enunciated in discussing the Cunctos populos
clause. See Bartolus, “Commentarii in Lex de Quibus”, 14 Am. J. Legal Hist. 154, 163-
174 (1970). By so doing, Bartolus tacitly subscribed to the notion that, by and large, the
same principles used to resolve “international conflicts” could also be used to resolve
inter-city or interstate conflicts.
22. See infra, Chap. II.1.
23. See infra, Chap. I.5.C.
24. See P. Franzina, “Bartolus de Sassoferrato”, in J. Basedow et al. (eds.),
Encyclopedia of PIL (2017) ; N. E. Hatzimihail, “Bartolus and the Conflict of Laws”,
60 Rev. hellénique dr. int’l 11, 16-21, 22-31 (2007).
25. Later Commentators added a third term for statutes, which they called “mixed”.
However, contrary to what this term might connote, it did not really describe a new
category of statutes. Rather, it encompassed all those personal statutes that, on closer
examination, were thought to operate territorially.
on the statute’s wording. Subsequent critics derided this reliance. They

seized on one example in Bartolus’s writings (“probably the most
misunderstood” 26), in which he argued that if the statute’s first words
referred to a person (such as a law that said that “the first-born son shall
succeed to the property”), the statute was personal, but if the first words
referred to a thing (such as “the property shall pass to the first-born
son”), the statute was real 27. The rest of Bartolus’s examples were less
subservient to syntax, and, in any event, this problem could be easily
corrected by using more enlightened interpretative methods that rely
on teleology rather than on syntax. Eventually, this correction occurred
when a later Commentator, Guy de Coquille (1523-1603) 28, pro-
posed that the classification of statutes into real or personal should
not depend on the wording of the statute, but rather on the pre-
sumed and apparent purpose of those who enacted it. This is no
different from examining the policy of a law, a notion that is now
an integral part of many modern American choice-of-law methodo-
logies.
Despite its shortcomings, the statutists’ classification of statutes was
the first comprehensive – though predictably unsuccessful – attempt
to delineate the legislative competence of states. Bartolus, of course,
pretended that his delineation was implicit in the supranational law of
Justinian’s Digest. However, by basing his delineation on the wording
of city-state statutes, Bartolus subconsciously subscribed to the opposite
and somewhat circular premise : that a state’s legislative competence or
prescriptive jurisdiction is not fixed from above through an overarching
law, but rather depends on the words through which that state chooses to
express its assertion of legislative competence. Eventually, this premise
led not only to the understanding that PIL is primarily national law, but
also to the notion that a state’s “claim” or “interest” to apply its law,
as expressed in the words or the content of that law, is an acceptable
criterion for resolving conflicts of laws. As we shall see later, there is an
obvious similarity between this line of thinking and some contemporary
American approaches, especially Brainerd Currie’s “interest analysis”,
which is discussed later in this volume 29.
26. Hatzimihail, “Bartolus and the Conflict of Laws”, at 27.

27. See ibid. at 27-28. For discussion of this example (known as the “English
case”), and a more sophisticated interpretation of Bartolus’s thinking, see ibid. at 38-
42.
28. See G. de Coquille, Questions et responses sur les coutumes de France (1611).
29. See infra, Chap. IV.2.
42 S. C. Symeonides
Section 4. Huber’s Comity
During the fifteenth and sixteenth centuries, other Italian as well as

French scholars, such as Charles Dumoulin 30 and Bertrand d’Argentré 31,
refined and modified Bartolus’s method, but without departing from the
basic tenets of statutist unilateralism. By the seventeenth century, the
leadership of the conflicts literature moved to the Netherlands, which
by that time was one of the major trading nations in the world.
In the meantime, Europe had witnessed the emergence of modern
nation-states, and Jean Bodin’s works on territorial sovereignty had
become a “best-seller” 32. It is therefore no surprise that the Dutch
authors Paulus Voet (1619-1667) 33, Ulricus Huber (1636-1694), and
Johannes Voet (1647-1714) 34 became intensely preoccupied with
explaining why courts apply foreign law, or in other words, how to
reconcile the application of foreign law with the principle of territorial
sovereignty. The Dutch answer can be summarized in one henceforth-
famous word : comity. Comity was defined as something in between
mere courtesy and legal duty, and derived from the tacit consent of
nations and based on mutual forbearance and enlightened self-interest.
In a ten-page essay, the most famous of these authors, Ulricus Huber 35,
postulated three axioms :
(1) The laws of each state have force within its boundaries, but not
beyond, and bind all subject to it.
(2) All persons found within a state’s boundaries are subject to its laws,
whether they are there permanently or temporarily.
30. Charles Dumoulin (1500-1566) resurrected the idea of party autonomy (namely,
the notion that a contract should be governed by the law chosen by the parties) and
extended that notion to cases in which the parties did not make an express choice. See
J.-L. Thireau, Charles Dumoulin (1500-1566) : Etude sur les sources, la méthode, les
idées politiques et économiques d’un juriste de la Renaissance (1980).
31. Bertrand d’Argentré (1519-1590) modified Bartolus’s classification of statutes
by creating a third category known as “mixed” statutes (see supra), and thus expanded
the category of statutes that operated territorially. D’Argentré also advocated for the
primacy of the law of the forum (lex fori). See C. de la Lande de Calan, Bertrand
d’Argentré, ses doctrines juridiques et leur influence (1892).
32. See J. Bodin, Six livres de la république (1576).
33. See P. Voet, De statutis eorumque concursu (1715).
34. See J. Voet, Commentarionum ad Pandectas libri Quinquaginta (1827)
35. Huber’s essay, entitled De conflictu legum diversarum in diversis imperiis, was
contained in a larger work entitled Praelectiones Juris Romani et hodierni (1689).
This essay, which was the first work to use the term “conflict of laws”, is reputed to
be the most widely read document on conflicts law. It is translated into English in
E. Lorenzen, “Huber’s De Conflictu Legum”, 13 Ill. L. Rev. 375 (1919).
(3)
Out of comity, states should ensure that rights conferred on
its subjects by one state shall retain their force in another state,
provided they do not prejudice the powers or rights of the latter
state 36.
Huber claimed that the first two axioms were based on Justinian’s
Digest, although the sources he cited concerned jurisdiction rather
choice of law. In Huber’s formulation, they affirmed the role of
territoriality as the main operating principle of PIL, a position that
remained unchallenged for many generations.
The third axiom was Huber’s own, although he claimed to have
derived it from Roman law. He did not cite any authority, because
in his view an axiom (in a mathematical sense) needs no proof 37. He
claimed that the axiom had never been doubted, which was true, but
only because nobody had articulated it until then. According to one
interpretation, Huber viewed this axiom as imposing a legal obligation
(subject to exceptions) on courts to apply foreign law in such situations,
although the axiom uses hortatory language 38.
Both Huber’s contemporaries and subsequent authors, including
Joseph Story, interpreted the axiom as allowing for more discretion 39.
Disagreements about the precise meaning of comity, which Albert Dicey
characterized as “a singular specimen of confusion of thought produced
by laxity of language” 40, continued for a long time, but ambiguity was
not the only problem. Huber’s axiom attempted to explain why, in
some cases, laws should apply extraterritorially, but not when. It did
not provide concrete guidance as to the circumstances in which the
forum should apply the law of another state, and how much discretion
the forum had to do otherwise. As Story noted more than a century
later, “The doctrine of Huberus . . ., [because of] its generality . . .
leaves behind grave questions as to its application.” 41
36. Author’s paraphrase from several sources.

37. See A. Watson, Joseph Story and the Comity of Errors : A Case Study in Conflict
of Laws 4-5 (1992) (“Though axiom 3 is not stated by Huber in a normative way, it is
for him a rule of law, and is normative. That is the very nature of an axiom”).
38. For a detailed documentation of this thesis, see Watson, supra footnote 37, at
1-17. See also Mathijs ten Wolde, “Urlik Huber”, in Basedow et al. (eds.), Encyclopedia
of PIL (2017).
39. For the argument that “Story misunderstood or misinterpreted Huber”, see
Watson, supra footnote 37, at 19. See also ibid. at 18-26.
40. A. V. Dicey, The Conflict of Laws 10 (1896).
41. J. Story, Commentaries on the Conflict of Laws, Foreign and Domestic, in
Regard to Contracts, Rights and Remedies, and Especially in Regard to Marriages,
Wills, Successions, and Judgments 37 (1834) (hereinafter Commentaries).
44 S. C. Symeonides
Huber’s axioms exerted a strong influence on both English and

American conflicts law, described infra, but had little influence in
continental Europe, which remained faithful to statutist teachings until
the middle of the nineteenth century.
Section 5. The Nineteenth Century : The Classical PIL Edifice
The nineteenth century was the most critical period in the formation
of modern PIL. The system we have today was built on doctrines
expounded by scholars who lived and wrote during this period,
primarily Savigny and Story, in the old and new worlds, respectively.
As Juenger has recently noted,
“[T]he nineteenth century, which produced such giants as
Justice Joseph Story and Friedrich Carl von Savigny, was our
discipline’s Golden Age. Indisputably . . . [they] transformed the
conflict of laws. . . . The impact of their work is still felt throughout
the world.” 42
A. Story
In 1828, Samuel Livermore (1786-1833), a civil-law lawyer from

Louisiana, published a book intended to import the statutist doctrines
to the United States 43, after having failed to persuade the Louisiana
Supreme Court to adopt them 44. The book was equally unsuccessful,
but Livermore indirectly influenced the course of American conflicts
law by making available the otherwise inaccessible continental PIL
literature to Joseph Story (1779-1845). Characterized as “one of the
most influential American lawyers of all time” 45, and “the secret teacher
of the world” 46, Story is the intellectual father of American conflicts
42. F. K. Juenger, “How Do You Rate a Century ?”, 37 Willamette L. Rev. 89, 91

(2001) (footnotes omitted).
43. See S. Livermore, Dissertations on the Questions Which Arise from the
Contrariety of the Positive Laws of Different States and Nations (1828). The title is
almost identical to that of a much earlier French book : L. Boullenois, Dissertations sur
des questions qui naissent de la contrariété des lois et des coutumes (1732). For the
influence of Livermore’s book on American conflicts law, see R. de Nova, “The First
American Book on Conflict of Laws”, 8 Am. J. Legal Hist. 136 (1964).
44. See Saul v. His Creditors, 5 Mart. (n.s.) 569 (La. 1827).
45. R. Michaels, “Joseph Story”, in J. Basedow et al. (eds.), Encyclopedia of PIL
(2017).
46. M. Wolff, Internationales Privatrecht 17 (1933). For assessments of Story’s
work, see, e.g., G. Kegel, “Story and Savigny”, 37 Am. J. Comp. L. 39 (1989) ;
E. G. Lorenzen, “Story’s Commentaries on the Conflict of Laws – One Hundred Years
law. Livermore helped advance Story’s work by providing, in his own

book, a thorough summary in English of the continental literature, and
by donating his entire library of continental writings to the Harvard
Law School (his alma mater), where Justice Story was then a professor.
Story made full use of the “fabulous Livermore Collection” 47 in
writing his seminal Commentaries on the Conflict of Laws (1834) 48,
the first comprehensive English language treatise on this subject. As
Hessel Yntema put it in 1953, Story’s work :
“[W]as not merely the first treatise on conflicts law worthy
of the name to appear in English but also a pioneer comparative
survey of both the civilian doctrines and the English and American
precedents, projected with a scholarly understanding of the mass
of detail that has not since been surpassed, and but rarely equalled
in England, the United States, or indeed elsewhere.” 49
Story drew heavily from the rich continental literature of the
previous two centuries, synthesizing and systematically recasting the
writings of dozens of continental authors. Unlike them, however, Story
married academic doctrine with the real world of case law, discussing
or referring to more than 500 cases, including 282 from the United
States, 216 from England, and 8 from Scotland 50. Story rejected the
After”, 48 Harv. L. Rev. 15 (1934) ; K. H. Nadelmann, “Joseph Story’s Contribution

to American Conflicts Law : A Comment”, 5 Am. J. Legal Hist. 230 (1961) ;
K. H. Nadelmann, “Bicentennial Observations on the Second Edition of Joseph Story’s
Commentaries on the Conflict of Laws”, 28 Am. J. Comp. L. 66 (1980).
47. Nadelmann, “Story’s Contribution”, at 246.
48. See J. Story, Commentaries (1834).
49. H. Yntema, “The Historic Bases of Private International Law”, 2 Am. J. Comp.
L. 297, 307 (1953).
50. It is worth noting that, because English PIL scholarship was in its infancy at the
time, the English cases discussed by Story were based on the writings of continental
scholars. Initially, the common law courts (as opposed to the special courts for
commercial and maritime matters) did not assert jurisdiction over cases arising from
a foreign event because they could not impanel foreign jurors as required by the jury
system rules (jury of the vicinage). Later on, the courts developed the legal fiction that
the foreign events had occurred in England, and thus assumed jurisdiction over cases
arising abroad. Consistent with this fiction, however, the courts applied English law to
these cases. Around the middle of the eighteenth century, English courts dropped this
fiction, openly asserted jurisdiction over cases with foreign elements, and confronted
the conflicts question for the first time. Faced with a dearth of indigenous PIL doctrine,
English courts turned to continental doctrine and borrowed copiously from it. Since
Huber’s doctrine was in vogue at the time, they imported it wholesale. See Juenger,
Multistate Justice 23–24 ; A. N. Sack, “Conflicts of Laws in the History of the English
Law”, in A. Reppy (ed.), Law, A Century of Progress, 1835-1935, 342 et seq. (Vol. 3,
1937). Huber’s passing reference to “rights acquired” under foreign law later evolved
into a full-fledged doctrine of “vested rights” in the writings of Albert Dicey. See A. V.
Dicey, A Digest of the Law of England with Reference to the Conflict of Laws (1896).
46 S. C. Symeonides
statutist doctrine but embraced Huber’s axioms and comity principle,

which American courts had already accepted, reformulating them as
follows :
“[1.] [E]very nation possesses an exclusive sovereignty and
jurisdiction within its territory . . . [and its laws] affect, and bind
directly all property, whether real or personal, within its territory
and all persons, who are residents within it, . . . and also all
contracts made, and acts done within it. . . .
[2.] [N]o state or nation can, by its laws, directly affect, or
bind property out of its own territory, or bind persons not resident
therein. . . .
[3.] [W]hatever force and obligation the laws of one country
have in another, depend solely upon the laws, and municipal
regulations of the latter, that is to say, upon its own proper
jurisprudence and polity, and upon its own express or tacit
consent. A state may prohibit the operation of all [or of some]
foreign laws, and the rights growing out of them, within its own
territories. . . . When [its law is] silent, then, and then only, can the
question properly arise, what law is to govern in the absence of a
clear declaration of the sovereign will. . . .
[4.] The real difficulty is to ascertain, what principles in point
of public convenience ought to regulate the conduct of nations
on this subject in regard to each other. . . . [T]he phrase ‘comity
of nations’ . . . is the most appropriate phrase to express the true
foundation and extent of the obligation of the laws of one nation
within the territories of another. It is derived altogether from the
voluntary consent of the latter ; and is inadmissible, when it is
contrary to its known policy, or prejudicial to its interests . . .” 51
Paragraphs 1 and 2 restate the principle of territoriality, paragraph 3
reiterates that PIL is national law and there is no international obligation
to apply foreign law, and paragraph 4 defines comity more flexibly than
Huber, as being based on the forum state’s “voluntary consent”. As an
astute observer recently noted, in Story’s treatise,
“Comity functioned . . . less as a basis of developing doctrines
and more as a check on general conflict-of-laws rules, akin to
what would later become the public policy exception. Comity was
51. Story, Commentaries, at 19, 21, 24-25, 37.

the small public law element in a treatise otherwise dedicated to

private law.” 52
Indeed, the 15 chapters that followed Story’s articulation of these
general maxims are essentially independent from, and far more
important than, those maxims. In those chapters, comprising nearly 500
pages, Story methodically laid the foundations for a new PIL method
and system. Having rejected the statutists’ unilateral method, he did
not try to determine the spatial reach of substantive laws. Instead, like
Savigny later, Story focused on categories of cases and extracted from
judicial decisions a series of bilateral rules for determining the law
governing each category : domicile, capacity, marriage and divorce,
contracts (though not torts), real and personal property, testate and
intestate successions, guardianship and administration 53. As a Swiss
author observed, Story
“begins almost a new era in the scholarly treatment of private
international law, not only in America and England, but also on
the Continent, a complete break with the previous method of
treatment, . . . a transition from an earlier to a new school” 54.
His categorization and focus on cases rather than substantive rules
were essential ingredients of the bilateral method, which Savigny later
adopted and further developed for the civil law world.
B. Wächter
Before discussing Savigny, brief mention must be made of another

German author, Carl Georg von Wächter (1797-1880) 55, if only
52. R. Michaels, “Joseph Story”, in J. Basedow et al. (eds.), Encyclopedia of PIL

(2017).
53. See Story, Commentaries, Chaps. III-XIII, 39-443. Three additional chapters
dealt with jurisdiction and remedies, foreign judgments, penal laws and offences, and
evidence. See ibid. at 444-532.
54. M. C. Gutzwiller, Der Einfluss Savignys auf die Entwicklung des Interna-
tionalprivatrechts 110 (1923) (quoted in K. H. Nadelmann, “Joseph Story’s Contribution
to American Conflicts Law : A Comment”, 5 Am. J. Legal Hist. 230, at 246 (1961)).
55. See C. G. von Wächter, “Über die Collision der Privatrechtsgesetze verschiedener
Staaten” (Pt. 1), 24 Archiv für die zivilistiche Praxis 230 (1841) ; C. G. von Wächter,
“Über die Collision der Privatrechtsgesetze verschiedener Staaten” (Pts. 2-4), 25
Archiv für die zivilistiche Praxis 1, 161, 361 (1842). For an English commentary and
partial translation, see K. H. Nadelmann, “Wächter’s Essay on the Collision of Private
Laws of Different States”, 13 Am. J. Comp. L. 414 (1964). For a recent, thoughtful
assessment of Wächter’s work, see R. Michaels, “Carl Georg von Wächter”, in
J. Basedow et al. (eds.), Encyclopedia of PIL (2017).
48 S. C. Symeonides
because he cleared the deck of the old doctrines, freeing Savigny to

develop the new system. As Fritz Juenger put it, Wächter “debunked
statutist learning, exposed the vested rights theory’s circular reasoning,
and disparaged the comity doctrine” 56.
In the place of these discarded internationalist doctrines, Wächter
proposed an ethnocentric, positivistic, unilateral approach based on the
primacy of the law of the forum (lex fori). Describing the judge as an
instrument of state legislative will, Wächter reasoned that, in resolving
conflicts disputes, the judge should keep in mind the policies and interests
of the forum state, rather than notions of comity and other multistate
considerations. Specifically, in the absence of an applicable positive
choice-of-law rule, the judge should examine whether the policies of
the forum’s substantive rules allowed for the application of foreign
law and, if not, the judge should apply forum law as the residual law.
Although Wächter’s approach had no followers in Europe at that time,
it bears remarkable resemblance to some approaches developed in the
United States during the second half of the twentieth century, especially
Albert Ehrenzweig’s lex fori approach 57 and Brainerd Currie’s interest
analysis 58. Moreover, Wächter’s ethnocentric conception of PIL,
although criticized in his time and later, may well be closer to today’s
realities than Savigny’s cosmopolitan perspective.
C. Savigny and multilateralism

Friedrich Carl von Savigny (1779-1861) is still considered the
founder of modern PIL, not only in his native Germany, but also in
the rest of continental Europe and, to a large extent, the entire civil
law world. His monumental contribution to PIL came in the last of his
eight-volume treatise on modern Roman law, published in 1849 59. Like
56. Juenger, Multistate Justice 32. Ralf Michaels concludes that the prevailing view
that Wächter’s contribution was primarily negative
“overestimates Wächter’s role in overcoming old theories (which had already lost
in influence) . . . and perhaps more importantly, it underestimates his constructive
contribution”. R. Michaels, “Carl Georg von Wächter”, in J. Basedow et al. (eds.),
Encyclopedia of PIL (2017).
57. See A. E. Ehrenzweig, “Lex Fori – Basic Rule in the Conflict of Laws”, 58 Mich.
L. Rev. 637 (1959-1960).
58. See infra, Chap. IV.2.
59. See F. C. von Savigny, System des heutigen römischen Rechts, Vol. 8 (1849),
translated into English by William Guthrie, under the title Private International Law,
A Treatise on the Conflict of Laws and the Limits of Their Operation in Respect of
Place and Time (1869). Hereinafter, all references to Savigny are to this translation,
abbreviated as Savigny, Treatise. For recent discussions of Savigny’s work, see
R. Michaels, “Globalizing Savigny ? The State in Savigny’s Private International
Wächter, Savigny rejected the statutist doctrine, but (unlike Wächter)

he rejected both the unilateral approach and the primacy of the lex fori.
Rather than focusing on the conflicting substantive laws and trying
to ascertain their intended spatial reach, Savigny (like Story) began
his analysis from the opposite end. He focused on cases, or “legal
relations”, and sought to identify the state in which each relationship
had its “seat”, or in whose legislative jurisdiction it “belonged”. In his
own words, the objective was “[t]o discover for every legal relation
(case) that legal territory to which, in its proper nature, it belongs or is
subject (in which it has its seat)” 60. To this end, he divided the field into
broad categories, similar to Story’s, along the major divisions of private
law : status, property, contracts, successions, and family law, and then
sought “the tie” 61 or “bond that connects” 62 each class of cases to a
particular state. In other words, through “connecting factors” (such
as domicile, situs, or the place of the transaction or event), Savigny
assigned “a definite seat . . . for each class of legal relations” 63.
Savigny’s overall objective was to ensure that each multistate
dispute would be decided in the same way regardless of where it
would be litigated : “The same legal relations (cases) have to expect
the same decision, whether the judgment be pronounced in this state
or in that.” 64 For him, international uniformity of result regardless
of forum or, as civilians call it, international decisional harmony
(Entscheidungseinklang, Entscheidungsharmonie, or harmonie des
decisions) 65 was the supreme goal of the choice-of-law process 66.
Law, and the Challenge of Europeanization and Globalization”, in M. Stolleis and

W. Streeck (eds.), Aktuelle Fragen politischer und rechtlicher Steuerung im Kontext
der Globalisierung 119 (2007) ; S. Peari, “Savigny’s Theory of Choice-of-Law as a
Principle of ‘Voluntary Submission’ ”, 64 U. Toronto LJ 106 (2014) ; M. Sonnentag,
“Savigny, Friedrich Carl von”, in J. Basedow et al. (eds.), Encyclopedia of PIL (2017).
60. Savigny, Treatise, at 89. See also ibid., at 27 (“To ascertain for every legal
relation (case) that law to which, in its proper nature, it belongs or is subject”).
61. Ibid., at 88.
62. Ibid., at 98. See also ibid., at 65 (“bond of connection”).
63. Ibid., at 89.
64. Ibid., at 27.
65. See J. Kropholler, Internationales Privatrecht 36 (2006) ; T. Rauscher, Interna-
tionales Privatrecht : Mit internationalem Verfahrensrecht 15 (2012) ; D. Koerner,
Fakultatives Kollisionsrecht in Frankreich und Deutschland 127 (1995) ; A. Bucher,
“La dimension sociale du droit international privé”, 341 Recueil des cours 9, 306 (2009)
(hereinafter Bucher, “La dimension sociale”). Franz Kahn coined the term, “harmony
of laws” (Gesetzesharmonie). See F. Kahn, Abhandlungen zum internationalen
Pivatrecht, Vol. 1, at 122 (1928).
66. See E. Jayme, “Identité culturelle et intégration : Le droit international privé
postmoderne”, 251 Recueil des cours 9, 89 (1995) (“L’harmonie des décisions constitue
l’objectif central du droit international privé”).
50 S. C. Symeonides
We shall return to this goal later 67. For now, let us state the
obvious – this is indeed a laudable goal if only because it removes
the incentive for forum shopping, which may unduly favour plaintiffs.
For this goal to be attainable, however, each state must : (1) adopt the
same categorization of legal relations ; (2) adopt the same connecting
factors for each relation ; and (3) not allow its own interests to dictate a
different decision. Experience has shown that an international or even
regional consensus on all three of these points is unlikely. However,
in Savigny’s view, consensus was achievable (if not already present),
for two reasons. First, Savigny’s focus was on private law, which he
distinguished sharply from public law. He viewed the latter as political
and the former as pure and apolitical, emanating directly from the
people’s spirit (Volksgeist) untainted by political motives.
Second, Savigny’s attention did not really extend beyond “Christian
nations” or nations “under a common Christian morality” 68. He believed
that “the influence of Christianity . . . as a common bond of spiritual
life embracing the most diverse nations, has thrown their characteristic
differences more and more into the background” 69. So much so, that
one could “apply to the conflict or territorial laws of independent states
substantially the same principles which govern the collision of particular
laws in the same state” 70. Hence, it was possible to have a universal PIL
common to all nations, one not imposed by public international law,
but instead derived from “an international common law of nations . . .
under the influence of a common Christian morality” 71. Consensus
among such nations was entirely possible, if only because of the “real
advantage which results from it to all concerned” 72.
In this idealistic, if not utopian, state of affairs, there was no room
for national antagonisms or forum protectionism. Savigny believed
that “complete legal equality between natives and foreigners” 73 was
“dictated by the common interest of nations and of individuals” 74, and
that the uniform treatment of legal relations in all states was a necessary
corollary :
67. See infra, Chap. III.3.

68. Savigny, Treatise, at 27.
69. Ibid., at 17.
70. Ibid., at 27.
71. Ibid.
72. Ibid.
73. Ibid., at 26.
74. Ibid., at 27.
“It is the necessary consequence of this principle . . . not only

that in each particular state the foreigner is not postponed to the
native . . . , but also that, in cases of conflict of laws, the same
legal relations (cases) have to expect the same decision, whether
the judgment be pronounced in this state or in that.” 75
A second corollary to this principle was the need to treat foreign law
and forum law equally. Savigny stated categorically that
“in deciding cases (legal relations) which come in contact with
different independent states, the judge has to apply that local law
to which the case (legal relation) pertains, whether it is the law of
his own country or the law of a foreign state” 76.
He also postulated that the same objective should motivate the enactment
of statutory choice-of-law rules : in enacting a particular rule, national
legislatures should “always . . . ask [themselves] whether such a rule
would be well adapted for reception into that common statute law of all
nations” 77.
Savigny recognized that the equal treatment of forum and foreign
law, as well as litigants, would be impeded if the forum state could
freely invoke its own interests. This is why, although he praised Story’s
“excellent work” 78 and drew several elements from it, Savigny rejected
Story’s focus on states as the principal PIL actors, along with his and
Huber’s comity doctrine, which Savigny saw as allowing too much
discretion to the forum state.
However, Savigny allowed two exceptions to his principle of
equal treatment. The exceptions applied to two categories of laws or
institutions :
“(A) Laws of a strictly positive, imperative nature, which are
consequently inconsistent with that freedom of application which
pays no regard to the limits of particular states.
(B) Legal institutions of a foreign state, of which the existence
is not at all recognised in ours, and which, therefore, have no
claim to the protection of our courts.” 79

76. Ibid., at 33.
77. Ibid., at 92-93.
78. Ibid., at 2 (referring to “the excellent work of Story, which is also extremely
useful, as a rich collection of materials, for every inquirer”).
79. Ibid., at 34.
52 S. C. Symeonides
Exception (B) was a partial restatement of the public policy excep-

tion (ordre public), while exception (A) was the first recognition of
what later became known as “overriding mandatory rules” 80. Savigny
characterized these rules as “anomalous” 81 and expressed the belief that
they would disappear over time. Savigny stated that, in cases falling
within these exceptions, the judge
“will have to apply the domestic law more exclusively than that
the principle [of equal treatment] allows, and must, on the other
hand, leave the foreign law unapplied, even where that principle
would justify its application” 82.
To summarize, Savigny viewed PIL as :
– Private and apolitical law
– Derived from the consensus of relatively homogeneous Christian
nations, and
– Consisting of neutral, evenhanded, bilateral choice-of-law rules that
(1) Place foreign law and litigants on parity with forum law and
litigants,
(2) Assign each legal relation to one particular state, regardless
of that state’s actual or imputed “wish” to apply its law and
regardless of that law’s content, and
(3) Aspire to produce international decisional harmony, regardless
of which state’s courts adjudicate the case.
D. Other nineteenth-century scholars

Space limitations do not allow for discussion of the contributions
of other nineteenth-century PIL scholars, but a serious study of PIL
history must include the writings of the at least the following scholars,
listed chronologically by birthdate : Jean Jacques Gaspard Foelix (1791-
1853) 83, François Laurent (1810-1887) 84, Pasquale Stanislao Mancini
(1817-1888) 85, John Westlake (1828-1913) 86
, Albert Venn Dicey
80. See infra, Chap. V.4.B.

81. See Savigny, Treatise, at 38. Savigny mentioned as examples of such rules the
prohibitions against polygamy and acquisition of realty by Jews. See ibid., at 36.
82. Ibid., at 34.
83. See J. J. G. Foelix, Traité de droit international privé ou du conflit des lois de
différentes nations en matière de droit privé (1843).
84. See F. Laurent, Droit civil international (8 vols., 1880-1881).
85. See P. S. Mancini (ed.), Diritto internazionale : Prelezioni con un saggio sul
Machiavelli (1873).
86. See J. Westlake, A Treatise on Private International Law or the Conflict of Laws
(1858).
(1835-1922) 87, Carl Ludwig von Bar (1836-1913) 88, Ernst Zitelmann

(1852-1923) 89, Daniel Josephus Jitta (1854-1925) 90, and Franz Kahn
(1861-1904) 91.
Section 6. The Twentieth Century

A. The two halves
Story, Savigny, and other writers of the nineteenth century laid
the doctrinal foundations of modern PIL. In comparing the scholarly
production of that century with that of the twentieth century, Fritz
Juenger concluded :
“Looking at the progress made during the nineteenth century on
fundamental points of doctrine, the achievements of the twentieth
century pale in comparison. While it did produce a number of
outstanding conflicts scholars, none of them attained Savigny’s
or Story’s stature. Beholden to their illustrious predecessors’
teachings, most of them were content to trot along the same path,
and those who did rebel against the classical approach did not
succeed in establishing a universally accepted alternative. For this
reason, it seems fair to say that, in spite of the immense body of
literature twentieth-century scholars have produced, the progress
falls short of the nineteenth century’s accomplishments. In part,
this is because they were forced to deal with problems Savigny
and Story had overlooked. This task prompted a great deal of
tinkering, which absorbed the scholars’ attention and left little
time for pondering alternative approaches to choice of law.” 92
This assessment is more accurate with regard to the first than the
second half of the twentieth century. While much of the literature
of the first half of the century 93 “trot[ted] along the same path” and
87. See A. V. Dicey, A Digest of the Law of England with Reference to the Conflict
of Laws (1896).
88. See C. L. von Bar, Das Internationale Privat und Strafrecht (1862) ; C. L. von
Bar, The Theory and Practice of Private International Law (1892).
89. See E. Zitelmann, Internationales Privatrecht (2 vols., 1897-1912).
90. See D. J. Jitta, La méthode du droit international privé (1890).
91. See F. Kahn, Abhandlungen zum internationalen Privatrecht (1928).
(2001).
93. This includes scholars born in the nineteenth century who published their works
primarily in the first part of the twentieth century. The most prominent among them
were Antoine Pillet (1857-1926), Étienne Bartin (1860-1948), and Antonio Sánchez de
Bustamante (1865-1951).
54 S. C. Symeonides
tinkered on the margins, the second half witnessed the appearance

of much iconoclastic literature, especially in the United States. The
latter literature “did not succeed in establishing a universally accepted
alternative” 94 but, along with other forces, it brought about some
significant changes in the system we have today. The rest of this course
examines those changes.
Before doing so, however, we must pause briefly in the first half
of the twentieth century, when American PIL underwent a major
reformulation, as reflected in the first Restatement of Conflict of
Laws 95, which in other systems would be tantamount to a codification.
B. Beale and the traditional American choice-of-law system
The principal drafter of the First Restatement was Henry J. Beale,

an erudite and prolific scholar who dominated the American conflicts
landscape for 50 years 96. He established the first course on conflict
of laws in the United States (Harvard, 1893) and published the first
American conflicts casebook, a three-volume collection of 400 American
and English cases, and 70 foreign cases translated into English 97. This
casebook was adopted far and wide for teaching conflicts law in most
other American law schools. The third volume included a summary of
Beale’s conception of conflicts law, which was the foundation of his
three-volume Treatise published in 1935, a year after the Restatement’s
promulgation and generally following its structure and sequence 98. By
the 1920s, most American law schools had introduced conflicts courses
in their curricula and, largely because of Beale’s stature, conflicts law
was chosen as one of the first four subjects that the American Law
Institute (ALI) decided to restate. In the end, the first Restatement was
more of a pre-statement of Beale’s views than a restatement of the case
law.

(2001) (emphasis added).
95. See American Law Institute, Restatement of the Law : Conflict of Laws (1934)
(hereinafter referred to as Restatement (First)).
96. For a recent assessment of Beale’s work, see S. Symeonides, “The First Conflicts
Restatement through the Eyes of Old : As Bad as Its Reputation ?”, 32 So. Ill. U. LJ 39
(2007).
97. See J. H. Beale, Collection of Cases on the Conflict of Laws (3 vols., 1900-
1902). Another casebook published in 1899 contained only 40 cases. See J. W. Dwyer,
Cases on Private International Law (1899).
98. See J. H. Beale, A Treatise on the Conflict of Laws (Vols. 1-3, 1935) (hereinafter
Beale, Treatise).
Beale’s view of conflicts law was shaped by two overarching

principles : territoriality and vested rights. The first principle identified
the state whose law created a substantive right, and the second explained
why other states had to enforce that right.
1. Territoriality
Beale believed that “the law is territorial”, and he really meant all
law.
“[T]here can be no law in a particular state except the law of
that state, and therefore . . . a foreigner coming into that state can
by no means bring with him his personal law . . . ; [he] is subject to
the law of the state as much as the nationals of the state.” 99
For Beale, this was an incontrovertible proposition, an axiom. On
this axiom, he built his entire theory :
“Law operates by extending its power over acts done throughout
the territory within its jurisdiction and creating out of those acts
new rights and obligations. . . . It follows . . . that not only must
the law extend over the whole territory subject to it and apply to
every act done there, but only one law can so apply. . . . By its very
nature law must apply to everything and must exclusively apply
to everything within the boundary of its jurisdiction.” 100
This premise became the cornerstone of the first Restatement, the
first section of which declared :
“No state can make a law which by its own force is operative
in another state ; the only law in force in the sovereign state is its
own law, but by the law of each state rights or other interests in
that state may, in certain cases, depend upon the law in force in
some other state or states.” 101
The Restatement reiterated this principle in other sections covering
torts (the lex loci delicti rule) 102, contracts (the lex loci contractus
99. Beale, Treatise 52 (Vol. 1).

100. Ibid., at 45-46.
101. Restatement (First), § 1.
102. See ibid., § 378 (“The law of the place of wrong determines whether a person
has sustained a legal injury”).
56 S. C. Symeonides
rule) 103, property (the lex rei sitae rule) 104, and virtually every other
subject.
In Beale’s time, territoriality was by no means a new principle
(although it was newer than the opposite principle of personality of
the laws). Indeed, territoriality was the favourite, if not the prevailing,
principle in the Anglo-American world. Until Beale, however, neither
the case law nor doctrinal writers had accepted this principle wholesale,
nor did anyone regard it as the exclusive foundation on which to build
the entire system of conflicts law. Beale’s territorialist system allowed
for far fewer “personal” exceptions than most continental systems,
which had adopted the personality principle for most matters of
capacity, personal status, and succession 105.
In the abstract, the principle of territoriality begged two important
questions. First, which territorial state should supply the applicable
law ? Second, if it is a state other than the forum, why would or should
the forum apply that law ? If, as Beale argued, “[n]o law is administered
as such by the courts except [its] territorial law” 106, why should the
forum apply another state’s territorial law ? Beale answered the first
question by choosing a priori a state that had a particular designated
territorial contact, such as the occurrence of the injury in torts, or the
dispatch of the acceptance in contracts 107.
2. Vested rights
Regarding the second question, Beale rejected Story’s answer, which

was based on the principle of comity, and adopted instead the vested
rights theory proposed earlier by the English author Albert V. Dicey 108.
Focusing on the designated contact or event, Beale reasoned :
“The [territorial] law annexes to the event a certain consequence,
namely, the creation of a legal right. . . . When a right has been
103. See Restatement (First), § 332 (“The law of the place of contracting determines
the validity and effect of a [contract]”).
104. See ibid., §§ 208-254.
105. This includes not only the systems that adopted nationality but also those that
adopted domicile as the connecting factor for these issues. Although many authors
consider domicile as just another territorial contact, this author considers it a personal
contact because it is based on a conscious and more permanent identification with a
particular state than, for example, the location of a person’s act or property.
106. See Beale, Treatise 52 (Vol. 1).
107. See Restatement (First), §§ 377 and 326.
108. See A. V. Dicey, A Digest of the Law of England with Reference to the Conflict
of Laws 22 (1896).
created by law, this right itself becomes a fact ; . . . [T]he existing

right should everywhere be recognized ; since to do so is merely
to recognize the existence of a fact. A right having been created
by the appropriate [i.e., territorial] law, the recognition of its
existence should follow everywhere. Thus an act valid where
done cannot be called in question anywhere.” 109
The vested rights theory provided the philosophical rationalization
for the entire Restatement. For example, in statements premised on the
assumed inevitability of this theory, the Restatement proclaimed :
“(1) If a cause of action in tort is created at the place of wrong,
a cause of action will be recognized in other states.
(2) If no cause of action is created at the place of wrong, no
recovery in tort can be had in any other state.” 110
By separating rights from the law that created them, Beale could
declare that the forum does not really apply foreign law. Rather, the
forum takes cognizance of the fact that a foreign law created a right
and then recognizes it under the forum’s own law 111. Despite its
many flaws 112, the vested rights theory was in some respects a modest
advancement from Story’s comity theory. Rather than relegating the
choice-of-law decision to the courts’ potentially unfettered discretion,
the vested rights theory turned this choice into a legal obligation. In
this sense, the vested rights theory was more deferential to foreign law
than was Story’s “quasi-legal, quasi-diplomatic, quasi-policy-oriented
concept of comity” 113. The irony is that Beale was clearly not an
internationalist and, in fact, was far less cosmopolitan than Story.
The problem was that, while the comity theory may have given courts
too much discretion in refusing to apply foreign law, the vested rights
theory gave courts no discretion at all. Worse yet, it often mandated the
application of the wrong law, such as the law of a state that had only

110. Restatement (First), § 384.
111. See Beale, Treatise 53 (Vol. 1).
112. Beale’s artificial construct was full of holes, but it was no more artificial than
the “local law theory” proposed by Walter W. Cook, one of Beale’s arch-critics at the
time, who argued that the forum “enforces not a foreign right but a right created by
its own law”, though modelled after the applicable foreign law. See W. Cook, The
Logical and Legal Bases of the Conflict of Laws 20-21 (1942). Thus, while Beale’s
theory separated foreign law from the rights it created and then treated the rights as
facts, Cook’s theory simply re-created the foreign rights under the law of the forum.
113. A. Riles, “A New Agenda for the Cultural Study of Law : Taking on the
Technicalities”, 53 Buff. L. Rev. 973, 992 (2005).
58 S. C. Symeonides
a tenuous or fortuitous contact with the case, or of a state that had no

true interest in the outcome (what is known today as a “false conflict”).
3. The first conflicts Restatement
Beale’s view of conflicts law did not remain unchallenged during

his own time, especially from the then-emerging legal realist school 114.
However, Beale’s views prevailed where it mattered most – in the
American Law Institute (ALI), which adopted his draft Restatement
with virtually no amendments 115. The academic criticisms continued
after the Restatement’s promulgation in 1934 and have intensified
ever since. Gradually, the Restatement became the favourite punching
bag of virtually every American PIL professor and writer. Indeed, the
Restatement was an easy target, rife as it was with flaws. But, in the
tradition of saying good things first, let us also recognize some of the
Restatement’s positive contributions. They include the following :
(1) The Restatement raised the level of awareness about, and
knowledge of, conflicts law among the members of the bar and the
bench. There is little doubt that, had it not been for Beale’s stature
in the 1920s, conflicts law would not have been included among
the first Restatements. Because of Beale and the Restatement, the
then-prevailing “pedagogical neglect” 116 of conflicts law gave way
to a renewed interest in the subject. Conflicts law gained its rightful
place in the curriculum of all American law schools, which, in turn,
made possible the renaissance of American conflicts law during the
next generation.
(2) The Restatement unified American conflicts law, which until then
had been scattered in the law reports, some of which were not
widely available. For the first time, it was possible to speak of a
single American conflicts law, despite variations from state to state.
Ironically, this unification, besides the Restatement’s content, both
caused and facilitated the conflicts revolution.
114. Beale’s main critics were three well-known legal realists : Walter W. Cook
(1873-1943), Ernest G. Lorenzen (1876-1951), and Hessel E. Yntema (1891-1966), as
well as David F. Cavers (1903-1988), who was one of Beale’s students. For a summary
and assessment of their criticisms, see S. Symeonides, “The First Conflicts Restatement
through the Eyes of Old : As Bad as Its Reputation ?”, 32 So. Ill. U. LJ 39, 62-65 (2007).
115. For a discussion of the ALI meetings and the whole process and background of
adopting the First Restatement, see ibid., at 66-74.
116. See W. D. Lewis, “Introduction to the Restatement, in American Law Institute”,
Restatement of the Law : Conflict of Laws xiii-xiv (1934).
(3) The Restatement was a comprehensive and complete system.

It provided a complete, organized, and disciplined network of
bilateral, fixed, neutral, and detailed choice-of-law rules designed
to provide solutions for all possible conflicts situations. This
was the first time such a comprehensive and complete work on
conflicts law had been produced on American soil. According to
one contemporary commentator, the Restatement was “a system,
something tangible out of the chaos of cases, a point of departure,
a beginning, systematic, rational, and withal not inconsistent with
what is implicit in most American precedents and explicit in many
of the decisions of the last twenty years” 117.
(4) The Restatement was non-parochial, even if it was not particularly
internationalist. It was non-parochial in that, unlike most of the
American approaches proposed since then (but not before), the
Restatement did not give preference to the forum state qua forum.
The Restatement purported to be, and in many respects was,
impartial vis-à-vis forum and foreign law. Its explicit aspiration was
to eliminate (or curtail) forum shopping and to foster international
or interstate uniformity of result by ensuring that a case would be
resolved in the same way regardless of where it was litigated. That
this aspiration has never been fully realized is another matter.
The following are some of the Restatement’s innumerable flaws :
(1) The Restatement was a system of detailed, mechanical and rigid
rules that : (a) completely sacrificed flexibility on the altar of
ostensible certainty and predictability, which eventually proved
illusory ; (b) ignored the lessons of experience, in favour of the
pursuit of an ill-conceived theoretical purity ; and (c) completely
eliminated judicial discretion, even as they purported to be a
distillation of the courts’ experience.
(2) Like Beale, the Restatement relied exclusively and excessively on
two principles – territoriality and vested rights – deducing virtually
all of its rules from these principles, while disregarding contrary
case law. Beale saw the world as a neatly laid out, black-and-white
chessboard in which the critical event would always occur entirely
in either a black or a white square. Reality is never so simple. Beale
never accepted the proposition that, in some cases, for some issues,
117. F. L. de Sloovère, “On Looking into Mr. Beale’s Conflict of Laws”, 13 NYU
LQ 333, 345 (1936).
60 S. C. Symeonides
the law of a person’s home state may have a legitimate claim of

application (personality principle), even if the dispute is triggered
by events occurring in another state. Beale thought that territoriality
was the “modern” and personality the medieval principle. Had he
been a better student of history or a better comparativist, he would
have realized that any system that completely banishes either one of
these two grand principles will inevitably run into an impasse, and
that the key is to know when and how to compromise on them 118.
(3)
The Restatement’s choice-of-law rules – despite their name –
were not designed to choose among conflicting laws, but instead
a priori assigned “legislative jurisdiction” to a particular state 119.
The assignment was based solely on a single, predesignated,
territorial contact. Subject only to limited post-choice exceptions,
the law of the designated state applied almost automatically,
regardless of its content, its underlying policy, or the substantive
quality of the solution it would bring to the case at hand. All that
mattered was whether that state had the specified contact, even
if its presence there was entirely fortuitous, and even if that state
had no real interest in the outcome. As David Cavers observed as
early as 1933, the Restatement was not much different from a slot
machine programmed to find the “right” state in a “blindfolded”
and random fashion 120. Indeed, the Restatement’s goal was to
find what it considered the spatially-appropriate law (“conflicts
justice”), rather than to ensure a substantively-appropriate result
in the particular case (material justice) 121. It did not occur to Beale
and his fellow drafters that, to intelligently resolve any conflict,
one must first ascertain what the conflict is about, and what the
conflicting objectives and claims are. In turn, this requires looking
into the content of the potentially conflicting laws, identifying their
purposes or policies, and proceeding from there.
118. For a discussion of this point, see S. Symeonides, “Territoriality and Personality
in Tort Conflicts”, in T. Einhorn and K. Siehr (eds.), Intercontinental Cooperation
through Private International Law : Essays in Memory of Peter Nygh 401 (2004).
119. For a thorough discussion of this “jurisdiction-selecting” feature of the
Restatement, see D. Cavers, “A Critique of the Choice-of-Law Problem”, 47 Harv. L.
Rev. 173 (1933).
120. See ibid., at 191-192.
121. See S. Symeonides, “Material Justice and Conflicts Justice in Choice of
Law”, in P. Borchers and J. Zekoll (eds.), International Conflict of Laws for the Third
Millennium : Essays in Honor of Friedrich K. Juenger 125 (2000).
Despite these and other flaws, the Restatement was adopted with
varying degrees of enthusiasm in virtually all states in the United States.
Such a consensus is a rare phenomenon (at least in conflicts law) and is
unlikely to be repeated. The Restatement dominated American conflicts
law for more than a generation and continued to command a majority of
states as late as 1979 in tort conflicts and 1984 in contract conflicts 122.
Although one might interpret this widespread acceptance as a
validation of the Restatement’s quality, other explanations are more
plausible. American courts accepted the Restatement because it was the
only option available, and because it was comprehensive and complete.
Most courts encounter conflicts cases only infrequently and thus do not
have the opportunity or the incentive to develop the necessary expertise
in this subject. As Arthur von Mehren noted in 1975, “Judicial experience
with any given choice-of-law problem is usually more episodic than
with analogous domestic-law problems” 123. And, as Russel Weintraub
reminded us, “Judges are not stupid, just busy” 124. They do not
have the time to read and evaluate the numerous conflicting aca-
demic commentaries. In their busy minds, the availability of an
authoritative-sounding document like the Restatement, which bears
the prestigious imprimatur of the ALI, obviates the need to look
elsewhere.
In any event, the courts’ allegiance to the Restatement did not run
as deep as the numbers might suggest. In relatively short time, courts
began deviating from the Restatement’s dictates by employing various
“escape devices”, such as characterization, renvoi, and the public policy
exception 125. As David Cavers predicted, “[N]either [Beale’s] Treatise
nor [his] Restatement [could] mechanize judgment.” 126 The first overt
departures from the Restatement occurred in 1954, when the New York
Court of Appeals rejected the lex loci contractus rule 127, and in 1963
when the same court rejected the rule of lex loci delicti 128. This was
122. See Symeonides, Revolution 10-11, 37 et seq.

123. A. T. von Mehren, “Recent Trends in Choice-of-Law Methodology”, 60
Cornell L. Rev. 927, 966 (1975).
124. R. Weintraub, “Courts Flailing in the Waters of the Louisiana Conflicts Code :
Not Waving but Drowning”, 60 La. L. Rev. 1365, 1366 (2000).
125. See Symeonides, Oxford Commentaries 68-86.
126. D. Cavers, “Restatement of the Law of Conflict of Laws”, 44 Yale LJ 1478,
1482 (1935).
127. See Auten v. Auten, 124 NE 2d 99 (NY 1954). For an earlier case refusing to
follow the lex loci contractus rule, see W. H. Barber Co. v. Hughes, 63 NE 2d 417 (Ind.
1945).
128. See Babcock v. Jackson, 191 NE 2d 279 (NY 1963).
62 S. C. Symeonides
the beginning of the American conflicts revolution, which I discuss in

depth in another publication 129.
At the time of this writing (2016), 10 states continue to follow the
traditional theory in tort conflicts 130, and 12 states do so in contract
conflicts 131. The two groups are not identical. For example, Florida,
Oklahoma, Rhode Island, and Tennessee have abandoned the traditional
theory in tort conflicts but not in contract conflicts. North Carolina
and West Virginia have done the opposite. In any event, it would be
a mistake to assume that either these or the other states are equally
committed to the status quo, or that they will remain so for the same
length of time 132.
Section 7. Summary : The Classical PIL System
Beale’s approach as codified in the First Restatement system is

known as the traditional system in the United States. By contrast,
Savigny’s approach is referred to as the classical PIL system in the rest
of the world. In part, the use of “traditional” and “classical” to describe
the First Restatement (and Beale’s) system and Savigny’s approach,
respectively, reflect the varying degrees of reverence (or lack thereof)
surrounding each. The two systems differed in many significant
respects, but mostly in the specifics rather than in methodology and
general ideology. Most of the differences stemmed from the fact that
Savigny developed his approach in an academic treatise, whereas Beale
had to concretize his approach into a Restatement, that is, a dense grid
of black letter rules. A treatise can be general, and Savigny’s was. It
consisted of broad principles – by nature flexible – rather than specific
rules. A Restatement must be specific enough for courts to follow, and
Beale’s was more specific than it needed to be. That specificity, but also
Beale’s doctrinaire proclivity, spawned rules that were too categorical
and rigid. In turn, this rigidity was one of the principal reasons for the
American choice-of-law revolution.
129. See Symeonides, Revolution 87-122.

130. These states are : Georgia, Kansas, Maryland, New Mexico, North Carolina,
South Carolina, Virginia, West Virginia, and Wyoming.
131. These states are : Alabama, Florida, Georgia, Kansas, Maryland, New Mexico,
Oklahoma, Rhode Island, South Carolina, Tennessee, Virginia, and Wyoming. In areas
other than torts and contracts, the traditional approach continues to be followed in
many more, if not most, states.
132. For discussion of precedents from each of these states, see Symeonides,
Revolution 51-62.
Despite their differences, however, the two systems did share

common features. At a minimum, they shared the same goals, namely :
(1) international uniformity of result regardless of forum ; (2) conflicts
justice rather than material justice ; and (3) legal certainty and predict-
ability. To accomplish these goals, both systems employed similar
means – choice-of-law rules – which : (1) were bilateral rather than
unilateral ; (2) placed foreign law and litigants on equal footing with
forum law and litigants ; (3) assigned each multistate case to one parti-
cular state based on a pre-designated connecting factor, regardless of
that state’s actual or imputed “wish” to apply its law and regardless of
that law’s content. Because of these similarities, what is said hereinafter
about the “classical” PIL system applies not only to Savigny’s model
but also to the traditional American system, unless the context indicates
otherwise.
CHAPTER II
SUBSTANTIVIST CARVE-OUTS
Section 1. The Original Substantivist Method
At least since the days of the Italian statutists, it has been taken for
granted that the only way to resolve disputes having contacts with
more than one state (multistate cases) is by choosing the law of one
of the contact states. This is how the middle part of PIL acquired the
name “choice of law”, and why this method of resolving multistate
disputes became known as the “conflictual” or “indirect” method
(méthode conflictuelle 133 ou indirecte 134). This method is conflictual
because it assumes that each involved state wants to apply its law, thus
engendering a conflict, which can be resolved by choosing one law
over the other. It is indirect because, instead of directly disposing of the
merits of the dispute, it delegates that task to the law of the chosen state,
without concern for the substantive outcome – except where it offends
the forum’s public policy. Hereinafter, this method is referred to as the
“selectivist” method.
As Fritz Juenger notes :
“The word ‘choice’ conceals an unstated assumption : it
suggests that the only way to resolve multistate problems is to
select one or the other from among two or more ‘conflicting’
municipal laws. Indeed, most conflicts scholars subscribe to
this view, however widely their opinions may vary about the
133. See, e.g., Y. Loussouarn, P. Bourel and P. de Vareilles-Sommieres, Droit

international privé 62-67 (9th ed., 2007) ; Y. Loussouarn, “Cours général de droit inter-
national privé”, 139 Recueil des cours 269, 279 et seq. (1973) ; E. Vitta, “Cours général
de droit international privé”, 162 Recueil des cours 9, 26 et seq. (1979) ; J. A. Carrillo
Salcedo, “Le renouveau du particularisme en droit international privé”, 160 Recueil des
cours 181, 208 et seq. (1978).
134. See, e.g., C. Esplugues Mota, J. L. Iglesias Buhigues and G. P. Moreno,
Derecho internacional privado 311-313 (9th ed., 2015) ; B. Audit, “Le caractère
fonctionnel de la règle de conflit : (Sur la crise des conflits de lois)”, 186 Recueil
des cours 219, 345 (1984) ; D. Opertti Badán, “Conflit de lois et droit uniforme dans
le droit international privé contemporain : Dilemme ou convergence”, 359 Recueil
des cours 9, 27 (2012) ; W. Goldschmidt, “La conception normologique en droit
international privé”, Nouv. rev. dr. int’l privé 16 (1940) ; Vitta, “Cours général”, at 143-
144.
proper method of selection. Yet, there are other ways to deal with
multistate transactions.” 135
Indeed, one of these other ways is also one of the oldest – the method
employed by the Roman praetor peregrinus in adjudicating disputes
involving non-Roman citizens 136 – as described in Chapter I. Rather
than choosing an extant law in whole, the praetor directly disposed of
the merits of the dispute by constructing and applying a new substantive
rule drawn from the laws of the involved states. Thus, an early instinct
of the legal mind when confronted with a multistate dispute was to seek
a middle ground, an accommodation of conflicting laws, rather than an
all-or-nothing choice of one over another. This search for compromise,
known as the “direct” or “material” method (méthode matérielle) 137, is
referred to hereinafter as the “substantivist” method 138.
The substantivist method faded away when the praetor’s rulings
(which made up the jus gentium) were merged into the jus civile in the
writings of the classical Roman jurists and later codified by Justinian.
By the Italian statutists’ time, the selectivist method had taken over and
has since remained the dominant method.
Section 2. Contemporary Substantivist Carve-Outs
During the Middle Ages, a form of substantivism appeared in the

development of the Law Merchant or lex mercatoria, which Blackstone
describes as a law with which “all nations agree” 139, as well as its sibling,
maritime law (lex maritima), which Lord Mansfield characterizes as
“not the law of a particular country but the general law of all nations” 140.
Eventually, maritime law was absorbed into national law, while the
135. Juenger, Multistate Justice 5.

136. See supra, Chap. I.2.
137. See, e.g., Y. Loussouarn, P. Bourel and P. de Vareilles-Sommieres, Droit
international privé 67-78 (9th ed., 2007) ; P. Picone, “Les méthodes de coordination
entre ordres juridiques en droit international privé : Cours général de droit international
privé”, 276 Recueil des cours 9, 84 (1999) ; C. Esplugues Mota, J. L. Iglesias Buhigues
and G. P. Moreno, Derecho internacional privado 309-311 (9th ed., 2015).
138. Some authors use the term substantivism to describe the pursuit of substantive
or material justice through the selectivist method. This volume uses the term “result-
selectivism” to describe that approach. See infra, Chap. VI.5.
139. 1 W. Blackstone, Commentaries on the Laws of England 273 (1765) (“the
affairs of commerce are regulated by a law of their own, called the law merchant or lex
mercatoria, which all nations agree in and take notice of”).
140. Luke v. Lyde, 97 Eng. Rep. 614, 617 (KB 1759). See also W. Tetley, “The
General Maritime Law – The Lex Maritima”, 20 Syracuse J. Int’l L. & Com. 105
(1994).
66 S. C. Symeonides
Law Merchant receded into the background following the enactment

and subsequent proliferation of national commercial laws.
Substantivism reappeared during the twentieth century, especially
in its second half, regaining some of the ground previously lost to
selectivism. This chapter provides a brief account of this development.
It does not need, and does not purport, to be comprehensive 141. Its
purpose is simply to get substantivism out of the way or, to put it
politely, to acknowledge this exception to the selectivist method, which
is the focus of this course.
A. Legislative substantivism
Today, the substantivist method is used primarily by legislators,

secondarily by arbitrators, and only rarely, if at all, by judges.
Legislators follow this method whenever they decide to adopt the same
law as other states, such as when they (1) implement an international
substantive law convention, protocol, or other similar instrument, or
(2) adopt an identical “uniform” or “model” law as other states. This
type of substantive law unification takes place at the international and
regional levels, as well as within plurilegal or federal countries such as
the United States, in which the constituent states or regions have their
own private law.
1. Internationally
Among the several organizations actively promoting the unifi-

cation of substantive law at the international level, the most notable
141. For comprehensive discussions of modern substantivism, see, inter alia,

K. Boele-Woelki, “Unifying and Harmonizing Substantive Law and the Role of Conflict
of Laws”, 340 Recueil des cours 271 (2009) ; T. M. de Boer, “The Relation between
Uniform Substantive Law and Private International Law”, in A. S. Hartkamp, et al.
(eds.), Towards a European Civil Code (1994) ; F. Ferrari, “Uniform Substantive Law
and Private International Law”, in J. Basedow, Encyclopedia of Private International
Law (2017) ; C. Kessedjian, “Codification du droit commercial international et droit
international privé : De la gouvernance normative pour les relations économiques
transnationales”, 300 Recueil des cours 79 (2002) ; D. Opertti Badán, “Conflit de
lois et droit uniforme dans le droit international privé contemporain : Dilemme ou
convergence”, 359 Recueil des cours 9 (2012) ; C. P. Pamboukis, “Droit international
privé holistique : Droit uniforme et droit international privé”, 300 Recueil des cours 9
(2008) ; F. Rigaux, “Droit privé matériel et règles de conflit de lois”, 24 Rev. Belge dr.
int’l 385 (1991) ; H. J. Sonnenberger, “L’harmonisation ou l’uniformisation européenne
du droit des contrats sont-elles nécessaires ? Quels problèmes suscitent-elles ?”, 91 Rev.
critique dr. int’l privé 405 (2002).
are : (1) the United Nations Commission on International Trade Law

(UNCITRAL) ; (2) the International Institute for the Unification of
Private Law, known as UNIDROIT ; (3) the International Maritime
Organization (IMO) ; and (4) the World Intellectual Property Organi-
zation (WIPO).
UNCITRAL is an organ of the United Nations based in Vienna and
engaged in the modernization and harmonization of transnational trade
law. In its 40-year life span, UNCITRAL has produced nine substantive
law conventions, of which five are in force 142 and four are not 143. The
most successful is the Convention on Contracts for the International
Sale of Goods (CISG) of 1980, which is in force in 85 states. Other
conventions cover limitation period in sales contracts, assignment
of receivables, letters of credit, bills of exchange, promissory notes,
carriage of goods by sea, liability of transport terminal operators, and
electronic communications in international contracts. UNCITRAL has
also produced several model laws, on subjects such as cross-border
insolvency, electronic commerce, electronic signatures, and public
procurement 144.
UNIDROIT is an independent intergovernmental organization of
63 member states from five continents based in Rome. In its 90-year
history, UNIDROIT has produced ten substantive law conventions,
eight of which are in force, covering sales of goods, financial leasing,
factoring, interests in mobile equipment, travel contracts, testamentary
142. See UN Convention on Contracts for the International Sale of Goods

(Vienna, 1980) (CISG) (in force in 84 states) ; Convention on the Limitation Period
in the International Sale of Goods (New York, 1974) (30 states) ; UN Convention on
Independent Guarantees and Stand-by Letters of Credit (New York, 1995) (8 states) ;
UN Convention on the Carriage of Goods by Sea (Hamburg, 1978) (34 states) ; UN
Convention on the Use of Electronic Communications in International Contracts (New
York, 2005) (7 states). The texts of all of UNCITRAL’s conventions and model laws are
available at its website at http ://www.uncitral.org, along with related documents and a
wealth of other very helpful information.
143. See UN Convention on International Bills of Exchange and Interna-
tional Promissory Notes (New York, 1988) ; UN Convention on Contracts for the
International Carriage of Goods Wholly or Partly by Sea (New York, 2008) ; UN
Convention on the Liability of Operators of Transport Terminals in International Trade
(Vienna, 1991).
144. See UNCITRAL Model Law on Cross-Border Insolvency (1997) (followed
in 41 states) ; UNCITRAL Model Law on Electronic Commerce (1996) (followed in
65 States) ; UNCITRAL Model Law on Electronic Signatures (2001) (followed in
32 states) ; UNCITRAL Model Law on Public Procurement (2011) (followed in 14 states) ;
and UNCITRAL Model Law on Procurement of Goods, Construction and Services
(1994) (followed in 30 states).
68 S. C. Symeonides
form, cultural property, agency, and intermediated securities 145, as well

as two model laws 146 and two sets of Principles 147.
The International Maritime Organization (IMO) is a specialized
agency of the United Nations based in London. It has 171 member states
and is concerned with improving the safety and security of international
shipping and preventing pollution from ships. The IMO administers 59
conventions and protocols, several of which involve substantive private
law matters, such as civil liability and compensation for oil pollution
damage, civil liability and compensation for damage caused by the
carriage of nuclear material or other hazardous substances, salvage,
limitation of liability for maritime claims, and carriage of passengers 148.
WIPO is an agency of the United Nations, based in Geneva. It has
188 member states and is devoted to the modernization and unification
of intellectual property law. WIPO administers 26 treaties dealing with
patents, trademarks, copyrights, and related matters 149. In addition to
145. The following UNIDROIT conventions are in force : Convention providing a

Uniform Law on the Form of an International Will (Washington, DC, 1973) (21 states) ;
Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995) (37 states) ;
Convention on International Factoring (Ottawa, 1988) (9 states) ; Convention relating
to a Uniform Law on the International Sale of Goods (ULIS) (The Hague, 1964)
(9 states) ; Convention relating to a Uniform Law on the Formation of Contracts for
the International Sale of Goods (ULFC) (The Hague, 1964) (9 states) ; Convention on
International Financial Leasing (Ottawa, 1988) (10 states) ; International Convention
on Travel Contracts (CCV) (Brussels, 1970) (6 states) ; Convention on International
Interests in Mobile Equipment (Cape Town, 2001) (70 states). See also Protocol to
the Convention on International Interests in Mobile Equipment on Matters Specific
to Aircraft Equipment (Cape Town, 2001) (62 States) ; Luxembourg Protocol to the
Convention on International Interests in Mobile Equipment on Matters Specific to
Railway Rolling Stock (Luxembourg, 2007) (not in force). The following conventions
are not in force : Convention on Agency in the International Sale of Goods (Geneva,
1983) ; Convention on Substantive Rules for Intermediated Securities (Geneva, 2009).
The texts of all of UNIDROIT’s conventions and model laws are available on its
website at http ://www.unidroit.org/, along with related documents and a wealth of
other helpful information.
146. See Model Franchise Disclosure Law (2002) ; Model Law on Leasing (2008).
147. See UNIDROIT Principles of International Commercial Contracts (3d ed.,
2010) ; ALI/UNIDROIT Principles of Transnational Civil Procedure (2004).
148. See International Convention on Civil Liability for Oil Pollution Damage
(1969), as amended by 1992 Protocol (in force in 134 states) ; Protocol to the Inter-
national Convention on the Establishment of an International Fund for Compensation
for Oil Pollution Damage (1992) (31 states) ; Convention relating to Civil Liability in
the Field of Maritime Carriage of Nuclear Material (1971) (17 states) ; International
Convention on Liability and Compensation for Damage in Connection with the Carriage
of Hazardous and Noxious Substances by Sea (1996 and its 2010 Protocol, 37 states) ;
International Convention on Salvage (1989) (64 states) Convention on Limitation of
Liability for Maritime Claims (1976) as amended by 1996 Protocol (52 states) ; Athens
Convention relating to the Carriage of Passengers and Their Luggage by Sea (1974), as
amended by 2002 Protocol (25 states) ; International Convention on Civil Liability for
Bunker Oil Pollution Damage (2001) (81 states) ; Nairobi International Convention on
the Removal of Wrecks (2007) (27 states). For the text and status of these conventions
and related documents, see http ://www.imo.org.
149. Among them are the following : Paris Convention for the Protection of
Industrial Property of 1883 (in force in 176 states) ; Berne Convention for the Protection
the above conventions, there are dozens of other conventions in the

fields of maritime law 150 ; carriage of passengers by air 151, sea 152,
road 153, and rail 154 ; and carriage of goods by sea 155, road 156, and rail 157.
of Literary and Artistic Works of 1886 (168 states) ; Madrid Agreement concerning the
International Registration of Marks of 1891 (55 states) ; Protocol Relating to the Madrid
Agreement concerning the International Registration of Marks of 1989 (97 states) ;
Hague Agreement concerning the International Registration of Industrial Designs of
1926 (85 states) ; Patent Law Treaty of 2000 (36 states) ; Trademark Law Treaty of 1994
(53 states) ; Singapore Treaty on the Law of Trademarks of 2006 (42 states) ; WIPO
Copyright Treaty of 1996 (94 states) ; Patent Cooperation Treaty 2001 (148 states). For
the text of these conventions and related documents, see http ://www.wipo.int/treaties/
en/. See also the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) of 1994, which is in force in 155 states (available at https ://www.wto.org).
150. See, e.g., International Convention of 6 May 1993 on Maritime Liens and
Mortgages available at https ://treaties.un.org (in force in 18 states) ; International
Convention of 12 March 1999 on Arrest of Ships available at https ://treaties.un.org
(in force in 11 states) ; International Convention of 10 October 1957 Relating to the
Limitation of the Liability of Owners of Sea-Going Ships, as amended by Protocol
of 21 December 1979 available at http ://www.admiraltylawguide.com/conven/proto-
limitation1979.html. For discussion of these and other maritime law conventions, see
N. J. Healy, “International Uniformity in Maritime Law : The Goal and the Obstacles”,
9 Cal. W. Int’l LJ 494 (1979) ; G. W. Paulsen, “An Historical Overview of the
Development of Uniformity in International Maritime Law”, 57 Tul. L. Rev. 1065 (1983) ;
W. Tetley, “Uniformity of International Private Maritime Law – The Pros, Cons, and
Alternatives to International Conventions – How to Adopt an International Convention”,
24 Tul. Mar. LJ 775 (2000) ; F. L. Wiswall, “Uniformity in Maritime Law : The Domestic
Impact of International Maritime Regulation”, 57 Tul. L. Rev. 1208 (1983).
151. See Warsaw Convention for the Unification of Certain Rules relating to
International Carriage by Air of 1929, as amended in 1955 (The Hague) and 1975
(Montreal) (which was in force in 125 states) available at http ://www.jus.uio.no/lm/air.
carriage.warsaw.convention.1929/doc.html) and its successor, the Montreal Convention
for the Unification of Certain Rules for International Carriage by Air of 1999 (which
is in force in 119 states) available at http ://www.jus.uio.no/lm/air.carriage.unification.
convention.montreal.1999/). For a comprehensive discussion of international uniform
transport law, see D. Damar, “Transport Law (Uniform Law)”, in J. Basedow, et al.
(eds.), Encyclopedia of PIL (2017).
152. See Athens Convention relating to the Carriage of Passengers and Their
Luggage by Sea (1974), as amended by 2002 Protocol.
153. See Convention of 1 March 1973 on the Contract for the International Carriage
of Passengers and Luggage by Road (in force in 9 states) available at https ://treaties.
un.org.
154. See Convention concerning International Carriage by Rail of 9 May 1980, as
amended by the Vilnius Protocol of 3 June 1999 (in force in 50 states) available at
http ://www.otif.org/.
155. See International Convention of 25 August 1924 for the Unification of Certain
Rules relating to Bills of Lading, 20 LNTS 155 (The Hague Rules) ; Protocol of 23 Feb-
ruary 1968 to amend the International Convention for the Unification of Certain
Rules of Law relating to Bills of Lading, signed at Brussels on 25 August 1924, 1412
UNTS 128 (Visby Protocol) ; United Nations Convention of 31 March 1978 on the
Carriage of Goods by Sea, 1695 UNTS 3 (Hamburg Rules) ; United Nations Convention
of 11 December 2008 on Contracts for the International Carriage of Goods Wholly or
Partly by Sea, 63 UNTS 122 (Rotterdam Rules).
156. See Geneva Convention on the Contract for the International Carriage of Goods
by Road of 1956 (which is in force in 55 states) available at https ://treaties.un.org.
157. See Convention of 9 May 1980 concerning International Carriage by Rail,
1396 UNTS 2 ; Uniform Rules concerning the Contract of International Carriage of
Goods by Rail, 1396 UNTS 2, available at www.otif.org.
70 S. C. Symeonides
2. Regionally
At the regional level, the most notable organizations are : (1) the
Organization of American States (OAS) ; (2) the Southern Common
Market (MERCOSUR) ; (3) the Organization for the Harmonization of
African Business Law (OHADA) ; and (4) the Council of Europe.
Dating back to 1890, the Organization of American States is the
world’s oldest regional organization. OAS has produced 89 conventions
and protocols, many of which deal with PIL 158. Others address public
and procedural law, and at least five deal with private substantive law
on subjects such as intellectual property, support obligations, child
custody, powers of attorney, and carriage of goods by road 159.
MERCOSUR is a customs union and trading bloc consisting of five
South American states and six associate members 160. It has produced
over 100 conventions, protocols, and similar instruments. A small
number of them deal with private substantive law, on subjects such
as intellectual property, traffic accident liability, business services, and
public contracts 161.
OHADA (Organisation pour l’Harmonisation en Afrique du Droit des
Affaires) is an organization encompassing 17 mostly French-speaking
states in West and Central Africa. It has produced several “uniform laws”
on subjects such as general commercial law, commercial companies,
co-operative companies, securities, insolvency, and carriage of goods by
158. See Symeonides, Codifying Choice of Law 32.

159. See Inter-American Convention on the Rights of the Author in Literary,
Scientific and Artistic Works (1946) (in force in 16 states) ; Inter-American Convention
on Support Obligations (1989) (13 states) ; Inter-American Convention on the
International Return of Children (1989) (14 states) ; Inter-American Convention on
International Traffic in Minors (1994) (15 states) ; Inter-American Convention on the
Legal Regime of Powers of Attorney to Be Used Abroad (1975) (16 states) ; Inter-
American Convention on Contracts for the International Carriage of Goods by Road
(1989) (not in force). For the text of these conventions and related documents, see
http ://www.oas.org/en/sla/dil/inter_american_treaties.asp.
160. MERCOSUR is a Spanish and Portuguese acronym for Común del Sur and
Mercado Comum do Sul. The five member states are Argentina, Brazil, Paraguay,
Uruguay and Venezuela. The six associate members are Bolivia, Chile, Peru, Colombia,
Ecuador and Suriname.
161. See Protocolo sobre armonización de normas sobre propiedad intelectual en
el Mercosur, en materia de marcas, indicaciones de procedencia y denominaciones de
origen (1995) ; Protocolo de armonización de normas en materia de diseños industriales
(1998) ; Protocolo de San Luis en materia de responsabilidad civil emergente de
accidentes de transito entre los estados parte del Mercosur (1996) ; Acuerdo para
la facilitación de actividades empresariales en el Mercosur (2004) ; Protocolo de
contrataciones públicas del Mercosur (2003, 2004, and 2006). For the text of these
instruments and related documents, see http ://www.mre.gov.py/tratados.
road 162. Despite their name, these uniform laws apply directly in each
of these states without the need for implementing internal legislation.
The Council of Europe is a regional intergovernmental organization
based in Strasbourg, whose purpose is to promote human rights,
democracy, and the rule of law in its 47 European member states. Since
its founding in 1949, the Council of Europe has produced more than 200
conventions. At least 13 of these conventions concern matters of private
substantive law, and nine of those are in force 163. Five conventions deal
with children 164. while the rest address diverse subjects, such as patents,
time limits, NGOs, and archaeological heritage 165.
3. Nationally
The National Conference of Commissioners on Uniform State Laws
(NCCUSL), also known as the Uniform Law Commission (ULC), is an
example of a national organization pursuing unification in a plurilegal
country, in this case, the United States 166. Established in 1892, the
162. See Acte uniforme portant sur le droit commercial general (1997) (revised
2016) ; Acte uniforme relatif au droit des sociétés commerciales et du groupement
d’intérêt économique (1997) (revised 2005) ; Acte uniforme relatif au droit des
sociétés cooperatives (2015) ; Acte uniforme révisé portant organisation des sûretés
(1997) (revised 2016) ; Acte uniforme relatif aux contrats de transport de marchandises
par route (2003) ; Acte uniforme portant organisation des procedures collectives
d’apurement du passif (1999) (revised 2015). The text of these conventions, along with
all related information, is available at OHADA’s website at http ://www.ohada.com/
accueil.html.
163. For the text of these conventions and related documents, see http ://www.coe.
int/en/web/conventions/full-list. The following conventions are not in force : European
Convention on Establishment of Companies (1966) ; European Convention on Civil
Liability for Damage Caused by Motor Vehicles (1973) ; European Convention on
Products Liability in regard to Personal Injury and Death (1977) ; European Convention
on Certain International Aspects of Bankruptcy (1990).
164. See European Convention on the Adoption of Children (1967) (in force in
18 states) (2008 revision in force in 10 states) ; European Convention on the Legal
Status of Children Born out of Wedlock (1975) (23 states) ; European Convention on
Recognition and Enforcement of Decisions concerning Custody of Children and on
Restoration of Custody of Children (1980) (37 states) ; European Convention on the
Exercise of Children’s Rights (1996) (20 states) ; Convention on Contact concerning
Children (2003) (9 states).
165. See Convention on the Unification of Certain Points of Substantive Law on
Patents for Invention (1963) (13 states) ; European Convention on the Calculation
of Time-Limits (1972) (4 states) ; European Convention on the Recognition of the
Legal Personality of International Non-Governmental Organisations (1986) (11
states) ; European Convention on the Protection of the Archaeological Heritage (1969)
(25 states).
166. For another example of a similar and active organization, see the Uniform Law
Conference of Canada, available at http ://www.ulcc.ca/en. So far, the European Union
has not adopted Regulations imposing a uniform substantive law, although it has issued
several directives on subjects such as consumer rights and products liability. However,
72 S. C. Symeonides
Commission has produced more than 300 uniform acts on diverse

subjects, such as commercial law, family law, successions, trusts, and
property. Among the most successful acts are the Uniform Commercial
Code, the Uniform Child Custody Jurisdiction and Enforcement Act,
and the Uniform Interstate Family Support Act, which have been
adopted by all states of the United States 167.
B. Non-state, anational substantivism
Like all international conventions, the aforementioned private

substantive law conventions owe their binding force within a state to
official action by that state. The same is true of uniform laws, which
become binding within a state only upon their adoption by that state’s
legislature. By contrast, in recent decades, we have witnessed the
appearance of sets of substantive norms that do not emanate from, and
are not sanctioned by, governmental action in the particular state 168.
besides not mandating complete uniformity, Directives are unevenly implemented.

Thus, they produce approximation rather unification of substantive law. See Boele-
Woelki, “Unifying and Harmonizing”, at 316-319.
167. For the texts of these acts and related documents, see http ://www.uniformlaws.
org/Acts.aspx.
168. From the vast literature on non-state norms, see, e.g., B. Benson, The Enterprise
of Law : Justice without the State (1990) ; K. P. Berger, The Creeping Codification
of the New Lex Mercatoria (2nd ed., 2010) ; A. C. Cutler, Private Power and Global
Authority : Transnational Merchant Law in the Global Political Economy (2003) ;
A. López Rodríguez, Lex Mercatoria and Harmonization of Contract Law in the EU
(2003) ; D. Oser, The UNIDROIT Principles of International Commercial Contracts :
A Governing Law ? (2008) ; P. Berman, “Towards a Cosmopolitan Vision of Conflict
of Laws : Redefining Governmental Interests in a Global Era”, 153 U. Pa. L. Rev. 1819
(2005) ; P. Berman, “Towards a Jurisprudence of Hybridity”, 1 Utah L. Rev. 11 (2010) ;
M. Bonell, “Soft Law and Party Autonomy : The Case of the UNIDROIT Principles”,
51 Loy. L. Rev. 229 (2005) ; M. Bonell, “Towards a Legislative Codification of the
UNIDROIT Principles ?”, 12 Unif. L. Rev. 233 (2007) ; R. Cooter, “Decentralized
Law for a Complex Economy”, 23 Sw. U. L. Rev. 443 (1994) ; R. Cooter, “Structural
Adjudication and the New Law Merchant : A Model of Decentralized Law”, 14 Int’l
Rev. L. & Econ. 215 (1994) ; G. Cuniberti, “Three Theories of Lex Mercatoria”, 52
Colum. J. Transn’l L. 369 (2014) ; C. Drahozal, “Contracting Out of National Law :
An Empirical Look at the New Law Merchant”, 80 Notre Dame L. Rev. 523 (2005) ;
N. Hatzimihail, “The Many Lives – and Faces – of Lex Mercatoria : History as
Genealogy in International Business Law”, 71 Law & Contemp. Probs. 169 (2008) ;
N. Jansen and R. Michaels, “Private Law beyond the State ? Europeanization,
Globalization, Privatization”, 54 Am. J. Comp. L. 843 (2006) ; F. Juenger, “American
Conflicts Scholarship and the New Law Merchant”, 28 Vand. J. Transn’l L. 487 (1995) ;
C. Kessedjian, “La codification privé”, in A. Borrás et al. (eds.), E Pluribus Unum –
Liber Amicorum G. Droz 135 (1996) ; D. Lawrence, “Private Exercise of Governmental
Power”, 61 Ind. LJ 647 (1986) ; M. Lehmann, “Liberating the Individual from Battles
between States – Justifying Party Autonomy in Conflict of Laws”, 41 Vand. J. Transn’l
L. 381 (2008) ; J. Macey, “Public and Private Ordering and the Production of Legitimate
and Illegitimate Legal Rules”, 82 Cornell L. Rev. 1123 (1997) ; F. Marrella, “Choice of
These non-state norms are referred to interchangeably as new lex

mercatoria, soft law, or “rules of law”, a term to which we shall return
later. They can be divided into three categories.
The first category includes conventions and other instruments drafted
by intergovernmental bodies such as UNIDROIT and UNCITRAL, but
not adopted in the particular state. Examples include the UNIDROIT
Principles of International Commercial Contracts, the UNCITRAL
Model Law on Cross-Border Insolvency, and also the CISG when it is
chosen by the parties 169.
The second category includes instruments produced by academic
groups or non-profit organizations such as the Commission on European
Contract Law (Lando Commission), the European Group on Tort Law,
and the Commission on European Family Law, which have produced,
respectively, the Principles of European Contract Law 170, the Principles
of European Tort Law 171, and the Principles of European Family
Law in the Third‑Millennium Arbitrations : The Relevance of the Unidroit Principles of

International Commercial Contracts”, 36 Vand. J. Transn’l L. 1137 (2003) ; R. Michaels,
“The Re-state-ment of Non-state Law : The State, Choice of Law, and the Challenge
from Global Legal Pluralism”, 51 Wayne L. Rev. 1209 (2005) ; R. Michaels, “The True
Lex Mercatoria : Law beyond the State”, 14 Ind. J. Global Legal Stud. 447 (2007) ;
R. Michaels, “The Mirage of Non-State Governance”, 1 Utah L. Rev. 31 (2010) ;
H. Muir Watt, “ ‘Party Autonomy’ in International Contracts : From the Makings of a
Myth to the Requirements of Global Governance”, 6 Eur. Rev. Contr. L. 250 (2010) ;
F. Rodi, “Private Law beyond the Democratic Order ? On the Legitimatory Problem
of ‘Private Law Beyond the State’ ”, 56 Am. J. Comp. L. 743 (2008) ; G. Saumier,
“Designating the Unidroit Principles in International Dispute Resolution”, 17 Unif.
L. Rev. 533 (2012) ; S. Schwarcz, “Private Ordering”, 97 Nw. U. L. Rev. 319 (2002) ;
A. Schwartz and R. Scott, “The Political Economy of Private Legislatures”, 143 U.
Pa. L. Rev. 595 (1995) ; D. Snyder, “Private Lawmaking”, 64 Ohio St. LJ 371 (2003) ;
P. Stephan, “The Futility of Unification and Harmonization in International Commercial
Law”, 39 Va. J. Int’l L. 743 (1999) ; P. Stephan, “Accountability and International
Lawmaking : Rules, Rents and Legitimacy”, 17 Nw. J. Int’l L. & Bus. 681 (1996) ;
S. Symeonides, “Party Autonomy and Private Law-Making in Private International
Law : The Lex Mercatoria that Isn’t”, in Festschrift für Konstantinos D. Kerameus
1397 (2009).
169. The prevailing opinion is that, when parties to a contract not otherwise covered
by CISG include a clause designating CISG as governing the contract, the CISG applies
as non-state law.
170. See Principles of European Contract Law (1999-2002) available at http ://www.
jus.uio.no/lm/eu.contract.principles.parts.1.to.3.2002/. For authoritative commentary
by the principal drafters, see O. Lando and H. Beale (eds.), The Principles of European
Contract Law, Parts I and II (1999) ; O. Lando, E. Clive, A. Prüm and R. Zimmermann
(eds.), Principles of European Contract Law, Part III (2003).
171. See The European Group on Tort Law, Principles of European Tort Law :
Text and Commentary (2005), available at http ://www.egtl.org/. For commentaries by
some of the drafters, see B. A. Koch, “The ‘European Group on Tort Law’ and Its
‘Principles of European Tort Law’ ”, 53 Am. J. Comp. L. 189 (2005) ; K. Oliphant,
“Rival Perspectives on European Tort Law (A Comparative Analysis)”, in H. Koziol
and B. C. Steininger (eds.), European Tort Law 666 (2010) ; For comments by other
74 S. C. Symeonides
Law 172. One could add to this category the Restatements produced by

the American Law Institute since the 1930s.
The third category consists of norms produced by private groups
such as trade associations and similar organizations. For example, in
the United States, these groups include banking clearing‑houses ; credit
card associations ; commodities merchants such as diamond dealers,
grain merchants, and cotton merchants ; the American Arbitration
Association (AAA) ; the New York Stock Exchange (NYSE) ; the
American Stock Exchange (AmEx) ; the National Association of
Securities Dealers (NASD) ; and, more recently, internet service and
domain providers 173.
Of course, there are qualitative and institutional differences between
the three categories of norms. Looking only at their drafters, the
instruments of the first category have been drafted by intergovernmental
agencies, the second by presumptively impartial academic groups,
and the third by for-profit entities that lack such a presumption.
Nevertheless, many of the supporters of non-state norms lump these
categories together and defend them with the same enthusiasm and
without any differentiation. Unsurprisingly, they call them “rules of
law”, a term appropriated by the arbitration literature since the early
1990s. Obviously, the term is inaccurate because these norms do not
possess any of the attributes of “law” 174, be it statutory, judge-made, or
customary 175. More practically, some of these norms, specifically those
authors, see M. Infantino, “Making European Tort Law : The Game and Its Players”, 18
Cardozo J. Int’l & Comp. L. 45 (2010) ; N. Jansen, “The State of Art of European Tort
Law : Present Problems and Proposed Principles”, in M. Bussani (ed.), European Tort
Law : Eastern and Western Perspectives 15 (2007).
172. These principles were published in three parts : Principles on Divorce and
Maintenance between Former Spouses (2004) ; Principles on Parental Responsibilities
(2007) ; and Principles on Property Relations between Spouses (2013). They are available
at http ://ceflonline.net/principles/ and in K. Boele-Woelki et al. (eds.), Principles of
European Family Law Regarding Divorce and Maintenance between Former Spouses
(2004) ; K. Boele-Woelki et al. (eds.), Principles of European Family Law Regarding
Parental Responsibilities (2007) ; K. Boele-Woelki et al. (eds.), Principles of European
Family Law Regarding Property Relations between Spouses (2013).
173. For citations, see Symeonides, “Party Autonomy and Private Law-Making”,
at II. A.
174. See H. Kronke, “Transnational Commercial Law and Conflict of Laws :
Institutional Co-operation and Substantive Complementarity”, 369 Recueil des cours 9,
24 (2013) (“[N]o rules can acquire the status and dignity of law without some external
validation”).
175. Non-state norms do not emanate from the collective will of the people formally
expressed through the ordinary, and nowadays democratic, legislative process ; they do
not result from the pronouncements of the judiciary ; and they do not qualify as custom,
i.e., a usually spontaneous practice repeated for a long time (longa consuetudo) and
of the third category, lack the attribute of neutrality. These norms are
drafted by private for-profit entities without any popular participation
or approbation. It is one thing to apply these norms to disputes between
their drafters, such as banks, grain merchants, or diamond dealers.
But it is another thing altogether to apply them to credit-card holders
or other consumers. It is reasonable to assume that, in drafting these
norms, a credit-card association is not overly solicitous of the interests
of the credit-card holders.
As noted in the next section, non-state norms have been used in
arbitration for a long time. However, these norms have not received
legislative or judicial sanction for use in litigation 176. For example,
in the United States, the Second Conflicts Restatement uses the terms
“local law” and “law” in a way that ties both terms to a “state”, which
the Restatement defines as a “a territorial unit with a distinct general
body of law” 177. This definition, combined with the repeated use of
the phrase “law of the state” in Section 187, makes it clear that the
Restatement drafters did not contemplate the contractual choice of non-
state norms. However, for issues that fall within the parties’ contractual
power, the Restatement allows parties to “incorporate by reference”
into their contract non-state norms of their choice 178. The UCC, which
employs a similar dichotomy between variable and non-variable rules,
generally accepted as having acquired the force of common and tacit consent (opinio
juris).
176. “Choice of non-state law is excluded in practically every national system of
choice of law.” R. Michaels, “Non-State Law in the Hague Principles on Choice of Law
in International Commercial Contracts”, in K. Purnhagen and Peter Rott (eds.), Varieties
of European Economic Law and Regulation : Liber Amicorum for Hans Micklitz 43, 44
(2014). See also R. Michaels, “Preamble I : Purposes, Legal Nature, and Scope of the
PICC ; Applicability by Courts ; Use of the PICC for the Purpose of Interpretation and
Supplementation and as a Model”, in S. Vogenauer and J. Kleinheisterkamp (eds.),
Commentary on the UNIDROIT Principles of International Commercial Contracts
21, No. 50 (2009) (“[C]omparison shows that almost all state legal orders reject
application of the [UNIDROIT Principles] as law by confining the status of ‘applicable
law’ to state law, whether as selected law within the scope of party autonomy or as
objectively applicable law in the absence of a choice”). For an argument that the Inter-
American Convention on the Law Applicable to International Contracts (“Mexico City
Convention”, in force in Mexico and Venezuela) and the Venezuelan PIL codification
sanction such a use, see Boele-Woelki, “Unifying and Harmonizing”, at 406-408 and
authorities cited therein, as well as in Symeonides, Codifying Choice of Law 143-145.
177. Restatement (Second), § 3.
178. Restatement (Second), § 187, cmt. c, states that the parties may “incorporate
into the contract by reference extrinsic material which may, among other things, be the
provisions of some foreign law”. The “extrinsic material” may be the law of another
state, but it can also be a treatise on contract law, or a collection of non-state norms.
Indeed, the Reporter’s Notes expressly state that the parties “may also stipulate for the
application of trade association rules or well-known commercial customs”. Ibid., § 187,
Reporter’s Note to Subsection (1).
76 S. C. Symeonides
allows the contractual “incorporation” of non-state norms with regard

to matters governed by variable rules of the UCC. Finally, the Rome I
Regulation takes the same position. Although it does not allow a choice
of non-state norms, it “does not preclude parties from incorporating by
reference into their contract a non-State body of law or an international
convention” 179.
The first international instrument to explicitly endorse the contractual
choice of non-state norms beyond the realm of arbitration was the Hague
Principles on Choice of Law for International Commercial Contracts of
2015 180, followed by Paraguay in the same year 181. Article 3 of the
Hague Principles provides that contracting parties may choose “rules
of law that are generally accepted on an international, supranational
or regional level as a neutral and balanced set of rules, unless the
law of the forum provides otherwise” 182. Thus, the Article introduces
two important qualifiers for non-state norms 183. The first focuses on
their attributes ; they must be (a) a “set of rules”, i.e., fairly complete
and comprehensive ; (b) “neutral and balanced” ; and (c) “generally
accepted” as such “on an international, supranational, or regional
level”. The second qualifier restates the obvious ; namely, that these
norms will not be treated on equal footing with real rules of law, if the
law of the forum “provides otherwise”, for example by not treating
these norms as law. This qualifier is obvious because the Principles
themselves are “soft law”, and thus apply only to the extent that the
179. Rome I, recital (13).

180. Hague Principles, Art. 3.
181. See Paraguayan Law 5393 of 2015 “Regarding the Applicable Law to
International Contracts”, Article 5 (“In this law, a reference to law includes rules of
law that are generally accepted on a non-state origin, as a neutral and balanced set
of rules.”). For discussion by the drafter and promoter of this law, which adopted the
Hague Principles with slight modifications, see J. A. Moreno Rodríguez, “Nueva ley
paraguaya de contratos internacionales : ¿regreso al pasado ?”, in Temas actuales del
derecho bancario y societario 121 (2015).
182. Hague Principles, Art. 3. For discussion of this article, see R. Michaels, “Non-
State Law in the Hague Principles on Choice of Law in International Commercial
Contracts”, in K. Purnhagen and Peter Rott (eds.), Varieties of European Economic
Law and Regulation : Liber Amicorum for Hans Micklitz 43 (2014) ; G. Saumier,
“The Hague Principles and the Choice of Non-State ‘Rules of Law’ to Govern
an International Commercial Contract”, 40 Brook. J. Int’l L. 1 (2014). See also
B. A. Marshall and M. Pertegás, “Party Autonomy and Its Limits : Convergence through
the New Hague Principles on Choice of Law in International Commercial Contracts”,
39 Brook. J. Int’l L. 975 (2014) ; S. Symeonides, “The Hague Principles on Choice of
Law for International Contracts : Some Preliminary Comments”, 61 Am. J. Comp. L.
873 (2013).
183. For the negotiations leading to the addition of these qualifiers, see Symeonides,
Codifying Choice of Law 144-145.
law of the forum allows. Even so, such a qualifier is necessary in order
to avoid uncertainty about preserving the status quo in states that do
not recognize these norms. Without the “unless” phrase, the courts of
a Hague Conference member state that acquiesces to this compromise
may infer a change in that State’s position and begin to interpret their
choice-of-law rules accordingly.
C. Substantivism in arbitration

The “unless” clause in the Hague Principles does not apply to arbitra-
tion, which differs in significant respects from litigation. Contracting
parties and arbitrators have always had broad power to choose the sub-
stantive law to be applied to the merits of a dispute, including the free-
dom to choose non-state norms 184. All relevant international instruments
confirm this power. For example, the International Arbitration Rules
of the American Arbitration Association (AAA) provide that an arbitral
tribunal “shall apply the substantive law(s) or rules of law designated by
the parties as applicable to the dispute” 185. Additionally, in the absence
of such a designation, the tribunal “shall apply such law(s) or rules of
law as it determines to be appropriate” 186. The UNCITRAL Arbitration
Rules 187, the rules of the International Chamber of Commerce (ICC) 188,
and many other international rules around the world contain virtually
identical provisions 189.
184. For extensive discussions of this issue, see M. Blessing, “Choice of Substantive
Law in International Arbitration”, 14 (2) J. Int’l Arb. 39 (1997) ; C. G. Buys, “The
Arbitrators’ Duty to Respect the Parties’ Choice of Law in Commercial Arbitration”, 79
St. John’s L. Rev. 59 (2005) ; T. M. de Boer, “Choice of Law in Arbitration Proceedings”,
375 Recueil des cours 53 (2014) ; J. Thrope, “A Question of Intent : Choice of Law and
the International Arbitration Agreement”, 54 Disp. Resol. J. 16 (1999) ; J. B. Tieder,
“Factors to Consider in the Choice of Procedural and Substantive Law in International
Arbitration”, 20 (4) J. Int’l Arb. 393 (2003) ; B. Wortmann, “Choice of Law by
Arbitrators : The Applicable Conflict of Laws System”, 14 Arb. Int’l 97 (1998).
185. American Arbitration Association, International Arbitration Rules, Art. 31 (1)
(2014) (emphasis added).
186. Ibid.
187. See UNCITRAL Arbitration Rules, Art. 35 (1) (as revised in 2010) (“The
arbitral tribunal shall apply the rules of law designated by the parties as applicable to
the substance of the dispute. Failing such designation by the parties, the arbitral tribunal
shall apply the law which it determines to be appropriate”).
188. See ICC Arbitration Rules, Art. 21 (1) (2012) (“The parties shall be free to
agree upon the rules of law to be applied by the arbitral tribunal to the merits of the
dispute. In the absence of any such agreement, the arbitral tribunal shall apply the rules
of law which it determines to be appropriate”).
189. See, e.g., London Court of International Arbitration (LCIA) Rules, Art. 22.3
(2014) ; Swiss Rules of International Arbitration, Art. 33 (2012) ; French Code
Civ. Proc., Art. 1511 ; Stockholm Chamber of Commerce (SCC) Rules, Art. 22 (1)
78 S. C. Symeonides
The parties’ freedom to choose “rules of law”, that is, non-state

norms, is well within the power they always have had to authorize an
arbitral tribunal to decide their dispute ex aequo et bono (according to
what is just and fair, without reference to any state law), as long as they
do so expressly. All of the arbitration rules considered here provide that
the tribunal “shall decide as amiable compositeur or ex aequo et bono
only if the parties have expressly authorized the arbitral tribunal to do
so” 190. By contrast, the tribunal has the power to apply non-state norms,
as long as the parties did not limit that power by contrary agreement.
At present, it seems that, in the majority of cases, the parties choose
the applicable state law. For example, according to a recent study, in 88
per cent of the cases referred to ICC arbitration in 2012, the parties had
chosen the applicable substantive law, which was the law of a state 191.
It is possible that these percentages will change in the future. In any
event, when the parties have not chosen the applicable law, the arbitral
tribunal “shall apply such law(s) or rules of law as it determines to be
appropriate” 192. This determination – known as voie directe – need not
go through the choice-of-law rules of the seat of arbitration, or of any
other state. Thus, a voie directe opens a door to substantivism, next to
the window of “amiable composition”. Utilizing this door, the arbitral
tribunal may apply (1) the law of any particular state ; (2) an amalgam
of rules drawn from the laws of several states, in a fashion similar to
that of the praetor peregrinus ; or (3) anational, non-state norms.
D. Substantivism in adjudication

Generally speaking, unlike arbitrators, judges do not have the power
(even if the parties wish otherwise) to apply non-state norms directly 193,
(2010) ; World Intellectual Property Organization (WIPO) Rules, Art. 59 (a) (2014) ;
International Institute for Conflict Prevention and Resolution, Inc., International
Administered Arbitration Rules, R. 10 (2015).
190. UNCITRAL Arbitration Rules, Art. 35 (2) (as revised in 2010). See also AAA
International Arbitration Rules, Art. 31 (3) (2014) ; ICC Arbitration Rules, Art. 21 (3)
(2012) ; London Court of International Arbitration (LCIA) Rules, Art. 22.4 (2014) ;
Swiss Rules of International Arbitration, Art. 33 (2) (2012) ; Stockholm Chamber of
Commerce (SCC) Rules, Art. 22 (3) (2010) ; World Intellectual Property Organization
(WIPO) Rules, Art. 59 (a) (2014) ; International Institute for Conflict Prevention and
Resolution, International Administered Arbitration Rules, R. 10 (3) (2015).
191. See T. H. Webster and M. W. Bühler, Handbook of ICC Arbitration Commentary,
Precedents, Materials, § 21-4 (3rd ed., 2015). In 16.95 per cent of these cases, the
parties chose English law, in 13.43 per cent, they chose Swiss law, and in 9.78 per cent,
they chose US law. Ibid.
192. AAA International Arbitration Rules, Art. 31 (1) (2014).
193. Nothing prevents judges from considering non-state norms as persuasive
authority.
or, for that matter, anything other than existing state law 194. However,
this limitation has not prevented some authors from arguing for a return
to substantivism.
For example, in the United States 195, Friedrich K. Juenger proposed
that judges should resolve conflicts of laws by constructing, from
among the involved states, a rule of law that best accords with modern
substantive-law trends and standards 196. In his work, Juenger makes
repeated references to the method of the Roman praetor peregrinus 197,
leaving the impression that he views his approach as the modern
iteration of that method. Juenger argues that, in today’s multistate cases,
the court should construct from among the involved states a rule of law
that best accords with modern substantive law trends and standards.
For example, regarding products liability conflicts, Juenger proposes
that the court should choose “[a]s to each issue . . . that rule of decision
which most closely accords with modern standards of products liability”
from among the laws of the places of conduct, injury, acquisition of the
product, and domicile of the parties 198.
Luther L. McDougal went a step further, arguing that in constructing
the ad hoc substantive rule of decision, courts should not confine
themselves to the laws of the states involved in the conflict but should
instead look beyond those laws and try to construct “the best” rule of
law 199. McDougal describes the best rule of law as the “one that best
promotes net aggregate long-term common interests” 200, and he gives
two examples of such a rule 201.
194. For the Venezuelan and Paraguayan exceptions, see supra footnotes 176 and 181.
195. For similar approaches in other countries, see E. Steindorff, Sachnormen
im internationalen Privatrecht (1958). See also Q. Alfonsín, Teoria del derecho
internacional privado 45-46 (1955) ; E. Langen, Transnationales Recht (1981) ;
F. Mádl, The Law of International Transactions (1982) ; J. G. Sauveplanne, “New Trends
in the Doctrine of Private International Law and Their Impact on Court Practice”, 175
Recueil des cours 9 (1982). For a much older iteration, see D. J. Jitta, La méthode du
droit international privé 5, 44, 98, 117 (1890).
196. See Juenger, Multistate Justice 145-173, 191-208.
198. Juenger, Multistate Justice, at 197. For a symposium on Juenger’s writings, see
F. Juenger, Choice of Law and Multistate Justice (special ed., 2005).
199. See L. L. McDougal, “Towards the Application of the Best Rule of Law in
Choice of Law Cases”, 35 Mercer L. Rev. 483, 483 (1984). According to McDougal :
“[C]ourts should move one step further and apply the best rule of law to resolve
choice of law cases, not simply the better rule of law. Application of the better rule
of law implicitly assumes that a court is limited in its choice to one of two possibly
applicable state laws. Courts are not so limited in their choice.” Ibid.
200. Ibid., at 484
201. For non-economic losses, McDougal proposes a rule that permits “complete
recovery of all losses, pecuniary and nonpecuniary, and of all reasonable costs incurred
80 S. C. Symeonides
Arthur T. von Mehren has offered a much more cautious solution,

which is limited to certain true conflicts. He suggests that judges could
resolve certain true conflicts by seeking a compromise of the conflicting
policies of involved states, rather than a full vindication of the policies
of one state and a complete subordination of those of the other state 202.
This compromise would take the form of a special substantive rule,
constructed ad hoc for the case at hand and derived from the laws of
both or all involved states. For example, one could resolve a true conflict
between the strict liability law of one state and the law of another state
that does not impose liability by constructing a special rule allowing the
recovery of half of plaintiff’s actual damages, or of certain items only,
such as medical expenses and loss of earnings 203.
In Kearney v. Salomon Smith Barney, Inc. 204, the California Supreme
Court reached a similar result in a true conflict, albeit without citing
von Mehren. Kearney involved cross-border telephone calls between
employees of a national brokerage firm operating in Georgia and its
California clients, including the plaintiffs. The employees regularly
recorded the telephone calls, as permitted by Georgia law, but California
law prohibited such recordings without the consent of all participants.
The plaintiffs sued the firm in California, seeking injunctive relief
and damages. The court held that California law governed, but only
in obtaining recovery, including reasonable attorney’s fees and litigation costs”. Op. cit.
footnote 199, at 533. For claims concerning punitive damages, he proposes a rule that
imposes such damages “on individuals who engage in outrageous conduct and who are
not adequately punished in the criminal process”. Ibid.
202. See A. T. von Mehren, “Special Substantive Rules for Multistate Problems :
Their Role and Significance in Contemporary Choice of Law Methodology”, 88 Harv.
L. Rev. 347, 367-369 (1974) ; A. T. von Mehren, “American Conflicts Law at the Dawn
of the 21st Century”, 37 Willamette L. Rev. 133 (2000).
203. See von Mehren, “Special Substantive Rules”, supra previous footnote, at 367-
369. Similarly, in a situation in which one state has a strict liability rule and a ceiling on
recovery and the other state has a negligence rule and unlimited recovery, the resulting
conflict could be resolved by a special substantive rule that would allow the plaintiff to
recover damages exceeding those imposed by the ceiling of the strict-liability state if the
plaintiff proves negligence, and below the ceiling if she does not prove negligence. See
ibid., at 369-370. For similar suggestions, see A. D. Twerski and R. G. Mayer, “Toward
a Pragmatic Solution of Choice-of-Law Problems – At the Interface of Substance and
Procedure”, 74 Nw. U. L. Rev. 781, 793, 799, 797 (1979) (proposing, inter alia, that a
guest statute conflict be resolved by allowing the suit but raising the standard of proof
so that the guest-plaintiff can recover only if he proves ordinary negligence by “clear
and convincing evidence” ; that a products liability conflict between a negligence rule
and a strict liability rule be resolved by shifting the burden of proof to the defendant
to show the absence of negligence ; and that a statute of frauds conflict be resolved by
allowing the promisee to recover if she can prove the existence of the contract by clear
and convincing evidence).
204. 137 P. 3d 914 (Cal. 2006).
prospectively. Accordingly, the court granted the requested injunctive

relief, but denied the claim for damages. The court concluded that
California’s interests “would be severely impaired if its law were
not applied in this context, whereas Georgia’s interest would not be
significantly impaired if California law rather than Georgia law were
applied” 205. However, the court wisely decided to give only prospective
effect to its decision and to :
“[R]estrain the application of California law with regard to the
imposition of liability for acts that have occurred in the past, in
order to accommodate Georgia’s interest in protecting persons
who acted in Georgia in reasonable reliance on Georgia law from
being subjected to liability on the basis of such action.” 206
The court held that the plaintiffs’ request for injunctive relief should
be allowed to proceed under California law, but their claim for damages
from defendant’s past conduct should be dismissed under Georgia
law 207.
A more conscious use of (or intention to use) a substantivist
approach can be seen in Judge Jack B. Weinstein’s opinion in In re
“Agent Orange” Products Liability Litigation 208, a class action filed
against the manufacturers of a chemical defoliant used by the US armed
forces in Vietnam. Weinstein, one of the most experienced American
judges in handling conflicts cases, announced his intent to develop and
apply to that case a “national consensus law” derived from the laws of
various states 209. However, the parties preferred to settle rather than
find out what that law was 210. In a subsequent article, Judge Weinstein
seems to have moved in a different direction, proposing the application
of the law of the forum qua forum in a similar hypothetical case 211.
Both of Weinstein’s proposals seem to be motivated by his profound
disillusionment with the selectivist method as practised in the United
States. Such disenchantment of a judge with this breadth and depth of
conflicts experience (which is also common among judges called upon
205. 137 P. 3d 914 (Cal. 2006), at 937.

206. Ibid., at 936.
207. See Ibid., at 938-939.
208. 580 F. Supp. 690 (EDNY 1984).
209. Ibid., at 713.
210. See S. E. Cox, “Applying the Best Law”, 52 Ark. L. Rev. 9, 27-28 (1999).
211. See J. B. Weinstein, “Mass Tort Jurisdiction and Choice of Law in a
Multinational World Communicating by Extraterrestrial Satellites”, 37 Willamette L.
Rev. 145 (2000).
82 S. C. Symeonides
to decide the complex “mega torts” 212) is a good reason to pause and

reflect. Indeed, the selectivist method comes very close to the crashing
point in coping with these cases, and thus the thought of abandoning
the method is entirely understandable. In ordinary single tort cases,
however, the selectivist method remains dominant and its use is rarely
questioned.
One possible exception to the judicial use of the selectivist method
is the increasing use of dépeçage, namely the application of the laws
of different states to different issues or aspects of the same cause of
action 213. Dépeçage comes close to the substantivist method in that it
leads to the creation of a hybrid substantive rule that does not exist as
such in any of the involved states but comes into existence only for
the case at hand. Nevertheless, dépeçage differs from the substantivist
method in that it is driven by selectivist, rather than substantive,
considerations. It is not an intended substantive solution, but the
unintended result of one feature of some modern selectivist methods –
their insistence in analysing and resolving each issue separately (called
“issue-by-issue analysis”) 214.
In conclusion, the above scholarly appeals for a return to a substantivist
method have not had any appreciable, conscious following from the
bench. On balance, the lack of contemporary judicial following of this
method should not be surprising. One reason is the fact that, for so long,
“[w]e have become so accustomed by tradition and theory to ideas of
conflict, choice and selection” 215. A more serious reason, however, has
to do with contemporary understandings about the appropriate role of
judges and the hierarchy of sources of law. For, unlike arbitrators whom
the parties can expressly authorize to decide a dispute ex aequo et
bono, judges do not have such authority. Judges are expected to decide
disputes according to law. The problem with the judicial version of the
substantivist method is that it contemplates the retroactive application
to unsuspecting litigants of a “law” that does not in fact exist anywhere,
until the moment the judge invents it. Although one could argue that
this is not different from what judges have been doing in expanding
212. See S. Symeonides, “The ALI’s Complex Litigation Project : Commencing the
National Debate”, 54 La. L. Rev. 843, 852-855 (1994) (discussing the federal courts’
“Van Dusen burden”).
213. See S. Symeonides, “Issue-by-Issue Analysis and Dépeçage in Choice of Law :
Cause and Effect”, 45 U. Toledo L. Rev. 751 (2014).
214. See ibid., at 752-756. Dépeçage is discussed in Chap. VIII, infra.
215. D. T. Trautman, “The Relation between American Choice of Law and Federal
Common Law”, 41 Law & Contemp. Probs. 105, 118 (1977).
the common law, the better view is that, at a minimum, there is a large
difference in degree (the degree of pretension) and, more likely, an
important difference in kind.
Section 3. Summary
The list of substantive law conventions and uniform laws mentioned

above is extensive, the topics they cover are diverse (although
commercial topics hold the lead), and the countries that have adopted
them are geographically dispersed. All of this may give the impression
that substantivism has made a momentous return since the beginning
of the twentieth century. For several reasons, this would be an
overstatement.
First, although the above list is long, it covers only a minuscule
percentage of a vast whole – substantive private law.
Second, these conventions and laws rarely eliminate all conflicts in
the cases falling within their scope. Even when all involved states are
bound by an identical text 216, each state may interpret it differently and,
in the absence of a supranational or other superior court (which exists
only in some regional organizations), these differences eventually
produce new conflicts. The American experience with the UCC
illustrates this phenomenon 217.
Third, even the adoption and uniform interpretation of identical texts
does not obviate the need to resort to choice-of-law rules or analysis.
Indeed, many of these conventions expressly refer certain issues to the
choice-of-law rules of the forum state, and occasionally those of another
state. For example, Article 1 (1) (b) of CISG provides that, besides the
cases in which the Convention applies directly, the Convention also
applies “when the rules of private international law lead to the law of
a contracting State” 218. Moreover, resort to these rules is necessary for
determining the applicable law for certain issues, such as validity, that
are excluded from the Convention’s substantive scope.
Nevertheless, it is fair to say that with the adoption of the above-
mentioned substantive law conventions and uniform laws, the
216. For example, many international conventions allow contracting states to file
reservations to some of their provisions. In the case of uniform laws, the adopting states
usually have the freedom to deviate from the official text, and many do.
217. See Hay, Borchers and Symeonides, Conflict of Laws 1155-1156.
218. UN Convention of 11 April 1980 on Contracts for the International Sale of
Goods, Art. 1 (1) (b). See also UNIDROIT Convention of 28 May 1988 on International
Financial Leasing, Arts. 6 (2), 7 (3), (5) (b), 8 (4).
84 S. C. Symeonides
substantivist method has recaptured some of the previously lost ground

and has reduced to some extent the scope of operation of the selectivist
method. In the grand scheme of things, this reduction is relatively small
and, although it should continue to grow in the future, the growth will
be slow. Thus, for the foreseeable future, the selectivist method will
continue to dominate all efforts to resolve multistate conflicts of laws.
Our attention now turns to that method.
CHAPTER III
THE “INTERNATIONAL”
IN PRIVATE INTERNATIONAL LAW
Section 1. What’s in a Name ? 219
Our subject is known by different names in different parts of the

world. The name “Conflict of Laws”, first used by a European writer,
Ulrich Huber 220, has prevailed in the United States but not in Europe.
The name “Private International Law”, coined by an American writer,
Joseph Story 221, is used in much of the rest of the world, though not in
the United States. Neither term is entirely accurate. Indeed, as early as
the nineteenth century, one author characterized the first name as “a
false metaphor” 222 and another described the second as “ill-constructed,
inconvenient and ugly” 223.
Perhaps minor terminological inaccuracies are inevitable, if
only because “[t]o be accurate [a] term must be long and clumsy ;
inexcusable vices in a proper name” 224. Thus, as Joseph Beale notes,
“It is not possible . . . in a single phrase to present the whole content of
this branch of the law.” 225 The fact remains, however, that these names
reflect different assumptions about the nature, scope, and function of
this subject ; and names matter because they can shape the search for
proper solutions to conflicts problems.
A. Conflict of laws
For instance, the term private international law focuses on the private
parties involved in disputes with extra-national elements. By contrast,
the name conflict of laws emphasizes the role of states, assuming that :
219. W. Shakespeare, Romeo and Juliet, II, ii, 1-2.

220. See U. Huber, “De conflictu legum diversarum in diversis imperiis”, in
U. Huber, Praelectiones Juris Romani et Hodierni (1689).
221. See Story, Commentaries, at § 9 (“This branch of public law may be fitly
denominated private international law”).
222. F. Harrison, “Le droit international privé ou le conflit des lois au point de vue
historique, particulièrement en Angleterre”, 7 Clunet 418, 533 at 537 (1880).
223. E. Zitelmann, Internationales Privatrecht 1 (Vol. 1, 1897).
224. J. H. Beale, Treatise 15 (Vol. 1, 1935).
225. Ibid.
86 S. C. Symeonides
(1) in such disputes, each involved state has an active or passive desire,
claim, or “interest” to apply its own law ; and (2) these claims always
pull in opposite directions and thus “conflict”. Many continental authors
dispute the first proposition (i.e., the notion that states have an interest
in disputes between private parties), and consequently do not examine
the second 226. Chapters IV and V discuss this important disagreement.
A related, though more elementary, objection comes from those
authors who dispute the propriety of the word “conflict”. In the nine-
teenth century, for example, Gabriel de Vareilles-Sommières wrote that
“[t]he only conflict is among the legal authors” in this field 227. In the
early part of the twentieth century, Antonio Bustamante similarly wrote,
“The laws of different sovereigns do not contend with one
another for the mastery. Each one keeps within its sphere of
operation, and only asserts its power in a foreign country when
the law of that country commands or permits it. In practice a
conflict is impossible.” 228
As late as 1987, the authors of the principal English treatise stated
that “the only conflict possible is in the mind of the judge who has
to decide which system of law to apply” 229. More recently, the great
226. Other authors generally accept the first proposition, but question the breadth of
the second. For example, Carl Ludwig von Bar states that a conflict of laws “arises only
when the legal systems of different states, differing among themselves, all claim that a
particular case shall be submitted to their own jurisdiction”. L. von Bar, Internationales
Privat- und Strafrecht 6 (1862).
227. G. Vareilles-Sommières, La synthèse du droit international privé xviii (1897).
228. A. Bustamante y Sirvén, Derecho internacional privado 18 (Vol. 1, 1931). See
also, J. J. Fawcett and J. M. Carruthers, Cheshire, North & Fawcett, Private International
Law 17 (14th ed., 2008) (“If an English court decides that [an] assignment must be
governed by French law, it does not do so because English law has been worsted in
a conflict with the law of France, but because it is held by the law of England, albeit
another part of the law of England, i.e., private international law, that in the particular
circumstances it is expedient to refer to French law”).
229. L. Collins, Dicey and Morris on the Conflict of Laws 32 (11th ed., 1987). This
phrase was removed from subsequent editions of the book. See L. Collins, Dicey,
Morris and Collins on the Conflict of Laws 36-37 (15th ed., 2012). However, Patrick
Glenn approvingly cited the above-quoted phrase and adopted the same rationale :
“Le choix . . . n’implique pas nécessairement le conflit. Les deux lois existent,
elles sont différentes, et on peut décider d’appliquer l’une ou l’autre d’elles,
ou même d’adopter une troisième solution. Il y aurait possiblement conflit si
on décidait d’appliquer deux lois incompatibles au même problème, mais dans
la situation préalable à tout litige il y a simplement deux lois potentiellement
applicables à la cause transnationale. Le droit international privé existe donc pour
éviter les conflits de lois et non pas pour les résoudre. Il n’y a pas de conflits de
lois en droit international privé.” P. Glenn, “La conciliation del lois : Cour général
de droit international privé”, 364 Recueil des cours 187, 208 (2012).
comparativist Patrick Glenn argued that such bellicose terminology

is inappropriate in the contemporary world, and may reinforce latent
confrontational tendencies 230. For those reasons, Glenn suggests the
alternative term “conciliation des lois” 231, echoing Antoine Pillet’s use
of “système de conciliation” at the dawn of the twentieth century 232,
while Karl Kreuzer suggests the term “droit de coordination spatiale”
(“räumliches Koordinationsrecht”) 233.
Indeed, the term “conflict of laws” may be unnecessarily bellicose for
a discipline whose objective should be to minimize the impediments to
cross-border activity and mobility and facilitate the smooth functioning
of the international and interstate systems. For that reason, this author
suggested the term “accommodation” 234 and adopted the “principle
of the least impairment” in drafting the Louisiana PIL codification 235.
However, both the term “conciliation”, as used by Pillet, and the term
“accommodation”, as used by this author, imply that states are not
disinterested spectators in multistate disputes between private parties.
Acknowledging the existence of some level of conflict holds more
promise for a rational resolution of these disputes, than does wishing
the conflict away. We shall return to these points in the next two
chapters. In any event, in deference to international readers, this course
uses the term private international law, albeit without accepting it as
less inaccurate than the term conflict of laws.
B. Private international law

Although Story uses “Conflicts of Laws” in his book’s title, he also
notes in passing that the term “Private International Law” would be an
appropriate alternative :
230. See 364 Recueil des cours, at 209-210 (“Effectivement, le langage de

confrontation et de conflit est devenu inapte pour les circonstances actuelles du monde.
Des tendances latentes à la confrontation ne peuvent qu’être renforcées par ce choix
malheureux de langage”).
231. Ibid., at 210.
232. A. Pillet, Principes de droit international privé 123 (1903).
233. K. Kreuzer, “La propriété mobilière en droit international privé”, 259 Recueil
des cours 9, 297 (1996) (“Le droit international privé (au sens large) constitue donc
un droit de coordination spatiale (räumliches Koordinationsrecht). Ainsi le droit
international privé n’est pas un droit de conflits de lois ou de juridictions mais un droit
d’évitement ou du moins d’atténuation de tels conflits”).
234. See S. Symeonides, “Accommodative Unilateralism as a Starting Premise
in Choice of Law”, in H.-E. Rasmussen-Bonne, R. Freer, W. Lüke and W. Weitnauer
(eds.), Balancing of Interests : Liber Amicorum Peter Hay 417 (2005).
235. See S. Symeonides, “The Conflicts Book of the Louisiana Civil Code : Civilian,
American, or Original ?”, 83 Tul. L. Rev. 1041 (2009).
88 S. C. Symeonides
“The jurisprudence . . . arising from the conflict of the laws

of different nations . . . is a most interesting and important
branch of public law. . . . This branch of public law may be fitly
denominated private international law, since it is chiefly seen and
felt in its application to the common business of private persons,
and rarely rises to the dignity of national negotiations, or national
controversies.” 236
“Private International Law” as a term began gaining wider acceptance
in Europe after a German book and a French book, published seven
and nine years, respectively, after Story’s book, used internationalen
Privatrechts 237 and droit international privé 238 in their titles 239.
Story’s explanation for this name requires deciphering. The first
sentence of the above quoted excerpt is self-explanatory : PIL is
international because it deals with “the conflict of the laws of different
nations” 240. The second sentence then purports to explain the adjective
“private” in PIL, although Story considers it a “branch of public law” 241.
This is not a contradiction. The two terms simply refer to the operation
of PIL in the international and domestic arenas, respectively. In the
international realm, PIL is private (as opposed to public international
law), in that it deals with “the common business of private persons,
and rarely rises to the dignity of national negotiations, or national
controversies” 242. However, in the domestic arena, PIL is a “branch
of public law” because the fundamental question in conflicts cases is
whether to apply foreign law, and the answer to that question depends
on “comity”, which is the “express or tacit consent” of a state 243.
236. Story, Commentaries, at § 9.

237. See W. Schaeffner, Entwicklung des internationalen Privatrechts (1841).
238. See G. Foelix, Droit international privé ou du conflit des lois de différentes
nations en matière de droit privé (1843).
239. In Scotland, the preferred name is “international private law”. See, e.g.,
E. B. Crawford and J. M. Carruthers, International Private Law – A Scots Perspective
(4th ed., 2015). Some authors distinguish “private international law” from “international
private law”. The latter term is meant to be broader by encompassing international
uniform substantive law. See K. Boele-Woelki, “Unifying and Harmonizing”, at
297. However, in languages other than English, only one term is used, e.g., droit
international privé, Internationales Privatrecht, derecho internacional privado, diritto
internazionale privato.
240. Story, Commentaries, at § 9.
241. Ibid.
242. Ibid.
243. Ibid., at § 23 (“[W]hatever force and obligation the laws of one country have
in another, depend solely upon the laws, and municipal regulations of the latter, that is
to say, upon its own proper jurisprudence and polity, and upon its own express or tacit
consent”).
Thus, for Story, PIL is internally public and externally private law.
This chapter focuses on the “international” attribute, while the next
discusses the private versus public characters of PIL.
Section 2. Internationality
The word “international” in PIL can perform two roles. The first is to
describe the cases that fall within the scope of this subject : those with
a legally significant international (or multistate) dimension resulting
from the parties’ affiliation with different states, or the location of the
elements that comprise the dispute. The second role is to indicate the
source from which this branch of the law derives its binding force. Is the
source truly international in the sense of being supranational or external
to the forum state ? Today, the answer is clearly negative ; however,
historically the answer was not as straightforward.
As Chapter I notes, the statutists viewed PIL as deriving from
Justinian’s Digest, which was hierarchically superior to the conflicting
laws of city-states. By the sixteenth century, with the emergence of
nation states and Jean Bodin’s principle of territorial sovereignty, Roman
law lost its direct binding force. Thus, a new rationale was needed to
explain why a state should ever apply foreign law. Huber’s comity, a
notion premised on the tacit consent of nations, performed that role, as
did Story’s version of comity later, even if it granted more discretion
to the forum state 244. Dicey’s, and later Beale’s, vested rights theory,
which replaced comity, implies a legal obligation to apply foreign law.
Even so, this obligation, as with comity, was self-imposed rather than
dictated by public international law. In fact, as Celia Fassberg notes,
Story “debunked” as “myth” the notion that choice-of-law rules are
“universal and bind all states as international law” 245.
By contrast, continental authors of the nineteenth century saw – or
at least sought – a much closer relationship between PIL and public
international law, both of which they viewed as integral parts of a
broadly defined “law of nations”. According to Arthur Nussbaum :
244. See supra, Chap. I.4, 5.A.

245. C. W. Fassberg, “Realism and Revolution in Conflict of Laws : In with a Bang
and Out with a Whimper”, 163 U. Pa. L. Rev. 1919, 1922-1923 (2015). Fassberg quotes
Story’s statement that It is an essential attribute of every sovereignty, that it has no
admitted superior, and that it gives the supreme law within its own dominions . . . What
it yields, it is its own choice to yield ; and it cannot be commanded by another to yield
it as a matter of right”)
90 S. C. Symeonides
“During the period from 1870 to 1930 . . . the notion that Private
International Law has its roots in the Law of Nations became
dominant on the European continent. . . . Nearly all of the leading
continental writers of the period espoused the Law-of-Nations
conception : in France, Weiss, Pillet and Bartin ; in Germany,
von Bar and Zitelmann ; in Italy, Fiore and Diena ; in Holland,
Jitta ; in Belgium, Laurent ; in Switzerland, Brocher and Meili. . . .
[S]upported by the ‘weight of authority’ the Law-of-Nations
doctrine slipped into most of the familiar civil law textbooks and
commentaries.” 246
Although not mentioned in this particular excerpt, the leaders of
this group were Pasquale Mancini (1817-1888), Tobias M. C. Asser
(1838-1913), Edouard Clunet (1845-1922), and Ernst Zitelmann
(1852-1923). Mancini was the first president of the prestigious Institut
de droit international, founded in 1873, which, to this day, treats
public and private international law as two parts of the same whole.
In 1874, Clunet (with Mancini and Charles Demangeat (1820-1896))
founded a Journal that now bears his name 247, which is “open to all
aspects of international law, without distinguishing between private
international law and public international law” 248. In 1893, Asser
(along with Mancini) was instrumental in establishing the first Hague
Conference on Private International Law, which sought to unify the
rules of PIL through international conventions. Finally, in 1897, driven
by his “whole-hearted faith in international solutions” 249, Zitelmann
published a book attempting to construct an entire system of choice-of-
law rules from public international law 250.
All of these attempts to anchor PIL in public international law failed.
As Nussbaum noted, “[A]s a matter of logic it has never been actually
proved that conflict rules are to be or can be derived from the Law of
Nations.” 251 After all, as Josephus Jitta posited in 1890, PIL could not
246. A. Nussbaum, “Rise and Decline of the Law-of-Nations Doctrine in the

Conflict of Laws”, 42 Colum. L. Rev. 189, 194 (1942).
247. The original name was Journal du droit international privé et de la législation
comparée, and was renamed Journal du droit international – Clunet in 1915.
248. Société française pour le droit international, Édouard Clunet, http ://www.sfdi.
org/internationalistes/clunet/ (last visited 2 April 2016) (“[L]e Journal s’ouvrit à tous
les aspects du droit international sans distinguer entre droit international privé et droit
international public”).
249. 1 A. Ehrenzweig, Private International Law, at 51 (1972).
250. See E. Zitelmann, Internationales Privatrecht (Vol. 1, 1897).
251. Nussbaum, “Rise and Decline of the Law-of-Nations Doctrine”, at 196.
be “a branch of the law of nations, since nations as such have no part

in it” 252.
In the early parts of the twentieth century,
“The idea that public and private international law were entirely
separate disciplines appeared to become established. This was a
product both of a narrowing of the domain of public international
law, to exclude ‘private’ actors and their relations, and of the
reconceptualisation of private international law itself as national
law.” 253
However, as Ted de Boer noted more recently :
“Today, no conflicts scholar of note would suggest that public
and private international law are branches of the same tree.
Contemporary conflicts theory does not hold that the choice
between lex fori and foreign law is dictated by universal rules
or principles. States are still deemed to be completely free to
enact their own rules of jurisdiction, choice of law, or recognition
and enforcement subject, of course, to federal restraints or
supranational limitations.” 254
Such limitations, however, are very mild.
“First, there is no common state practice except for the most
unproblematic cases. Violations of accepted choice-of-law
principles do not yield diplomatic protests ; at best, the resulting
decisions are denied recognition.” 255
Other than the few international conventions that avoid or resolve
conflicts problems through substantive or choice-of-law rules 256, public
252. D. J. Jitta, La méthode du droit international privé 35 (1890).

253. A. Mills, “Public International Law and Private International Law”, in
J. Basedow et al. (eds.), Encyclopedia of PIL (2017). See also J. Basedow, “The Law of
Open Societies. Private Ordering and Public Regulation in the Conflict of Laws”, 360
Recueil des cours 9, 107-108 (2013) (hereinafter Basedow, “Open Societies”) (“[T]he
bell began to toll for the internationalist conceptions of the conflict of laws when more
and more legislatures started in the nineteenth century to enact their own statutory
provisions on choice of law. Ever since the early twentieth century, the prevailing
opinion has considered private international law as national law subject to the political
decision-making of national legislatures”).
254. T. M. de Boer, “Living Apart Together : The Relationship between Public and
Private International Law”, 57 Neth. Int’l L. Rev. 183, 195 (2010) (hereinafter de Boer,
“Living Apart Together”).
255. R. Michaels, “Public and Private International Law : German Views on Global
Issues”, 4 J. Priv. Int’l L. 121, 125 (2008).
256. See supra, Chap. II.2.A.1-2.
92 S. C. Symeonides
international law imposes few restraints, and provides little guidance,

on the subject. Thus, to use Ehrenzweig’s words, “[O]ur discipline must
be willing to accept the disconcerting absence of a superlaw.” 257 PIL is
very much national law.
Section 3. International Uniformity

Nevertheless, Savigny’s vision of basing PIL not on public interna-
tional law as such, but on “an international common law of nations” 258,
or a “universal customary law” 259, survived as an aspiration. Savigny
believed that, “[U]nder the influence of a common Christian mora-
lity” 260, and because of the “real advantage which results from it to all
concerned” 261, states should (and could) reach a consensus on univer-
sally acceptable choice-of-law rules. These rules would assign “a
definite seat . . . for each class of legal relations” 262 and ensure that
each class would be decided the same way, “whether the judgment be
pronounced in this state or in that” 263. National lawmakers, in adopting
these rules, were to behave as surrogates for a hypothetical international
legislature, by : (1) aiming for international decisional harmony ;
(2) acting unselfishly, impartially, and evenhandedly ; (3) treating foreign
and forum law, as well as foreign and domestic litigants, equally 264 ; and
(4) adopting only those choice-of-law rules with sufficient appeal to be
adopted by other nations, as to produce an international consensus 265.
Thus, for Savigny, PIL was international not because of its sources
but because of its aspirations – the highest aspiration of which was
international decisional harmony (Entscheidungsharmonie). A little
more than a century later, the Institut de droit international echoed
Savigny’s internationalist aspirations. In a resolution adopted in 1952,
the Institut proclaimed :

259. Ibid., at 29.
260. Ibid., at 27.
261. Ibid.
262. Ibid., at 89.
263. Ibid., at 27.
264. Chap. II, supra.
265. Savigny, Treatise, at 92-93 (In enacting a particular rule, national legislatures
should “always . . . ask [themselves] whether such a rule would be well adapted for
reception into that common statute law of all nations”). See also H. Batiffol, “Réflexions
sur la coordination des systèmes nationaux”, 120 Recueil des cours 165 (1967) ;
P. Vallindas, “Les principes de la bilatéralité et de la possibilité d’internationalisation
des règles du droit international privé”, 1 Rev. hellénique dr. int’l. 327 (1948).
“Les règles du droit international privé doivent, en général,

utiliser des critères susceptibles d’internationalisation, c’est-à-
dire, notamment, susceptibles d’être adoptés dans des conventions
internationales de manière à éviter des solutions discordantes d’un
même cas concret dans des pays différents.” 266
In 1989, the Institut reiterated and reinforced this position,
recommending that states should : (1) “adopt choice of law rules based
on connecting factors which lead to the application of foreign law
under the same conditions as lead to the application of the law of the
forum” 267 ; (2) refrain from adopting rules that “broaden the scope of
the application of the law of the forum as against that of foreign law” 268
or discriminate against non-forum litigants ; and (3) follow the same
principles in enacting subsidiary rules, or rules designed to accomplish
a particular substantive result.
While this sounds nice, it is easier said than done. Savigny’s goal of
international uniformity cannot be attained unless all states agree on the
same categorization of legal relations, adopt the same connecting factors
for each relation, and apply the resulting choice-of-law rules in exactly
the same way 269. Even with the best intentions, such an agreement is
extremely difficult, if not impossible. In fact, as Trevor Hartley points
out, even if all involved states agree on all three elements, there is still
no assurance of a uniform result because choice of law “never applies to
procedure ; and procedure is often more important than substantive law
266. Institut de Droit International, Session de Sienne – 1952, “L’influence des

conditions démographiques sur le règlement des conflits de lois”, available at http ://
justitiaetpace.org/resolutions_chrono.php ?start= 1947andend=1952. The title of this
resolution, as well as a preceding paragraph, provides context for this grand statement.
The preceding paragraph states :
“Les règles du droit international privé ne doivent pas, pour des raisons
démographiques, utiliser des points de rattachement donnant lieu à une différence
entre le domaine d’application de la loi nationale et celui de la loi étrangère.” Ibid.
For discussion, see P. Vallindas, “Les principes de la bilatéralité et de la possibilité
d’internationalisation des règles du droit international privé”, 1 Rev. hellénique dr. int’l.
329 (1948).
267. Institut de Droit International, Session of Santiago de Compostela – 1989,
“Equality of Treatment of the Law of the Forum and of Foreign Law”, available at
http ://justitiaetpace.org/resolutions_chrono.php ?start= 1985andend=1991.
268. Ibid.
269. “[O]ne cannot expect each legal system on this Earth to pigeon-hole legal
relationships in an identical manner, nor is universal agreement on the precise
shape of the pertinent connecting factors a realistic prospect”, F. K. Juenger,
“Private International Law or International Private Law”, 5 King’s College LJ 45,
at 49 (1994-1995).
94 S. C. Symeonides
in determining the outcome” 270. As Hartley explains, the differences

between attorney fee systems, discovery methods, jury availability, and
amount of damages awarded often have a more decisive impact than
choice of law on substantive outcomes. He concludes :
“For all these reasons, attempts to attain international uniformity
of result are futile. However, they are more than futile : they can
be positively harmful. In attempting to frame choice-of-law rules
capable of universal acceptance, writers and courts avoid any
policy content in case the policy is unacceptable to some States.
They also tend to view the exercise as one of delimiting the
application of a legal system in space . . . rather than solving a
concrete case. The result is that legitimate policy considerations
and the interests of the parties are often ignored. Futile attempts
to attain international uniformity of decision thus distort the
choice-of-law process, thereby jeopardizing other (attainable)
objectives.” 271
Hartley overstates his case in suggesting that the goal of international
uniformity is not only futile, but “positively harmful” as well 272.
Uniformity has undeniable benefits. It facilitates the smooth functioning
of the international system by avoiding unhealthy competition among
states, and promotes efficiency and predictability by eliminating
incentives for forum shopping 273.
The problem with uniformity is not that it is harmful, but that it
is unattainable 274. To be more precise, uniformity is not attainable
when its pursuit is left to individual states. As Frank Vischer notes,
there is a “lasting antinomy between [PIL’s] international objectives
(just attribution of an international relationship to a legal order)
and the national sources of conflicts law” 275. The proper means of
achieving uniformity is through collective action, such as negotiating
270. T. Hartley, “The Modern Approach to Private International Law : International

Litigation and Transactions from a Common-Law Perspective”, 319 Recueil des cours
9, 27 (2006).
271. Ibid., at 29-30.
272. Hartley could be correct, however, in concluding that “there is no single,
overarching policy objective in conflict of laws”. Ibid., at 204 (emphasis added).
273. In turn, the elimination or reduction of forum shopping makes the system fairer
to defendants, who do not get to choose the forum, which is one of Hartley’s concerns.
See ibid., at 32.
274. But see J. Basedow, “Open Societies”, at 46 (“objectives are not abandoned for
the sole reason that they cannot be attained in all cases”).
275. Vischer, “General Course”, at 21.
multilateral conventions. However, current experience illustrates the

difficulties of such an undertaking. With the notable exception of the
New York Arbitration Convention, which is in force in 156 states 276,
few PIL conventions can claim widespread following. The Hague
Conference on Private International Law, the principal international
forum for such conventions, invested a tremendous amount of effort
and talent in drafting 38 conventions over the last six decades. Even
so, the number of countries that have ratified these conventions varies
significantly, and the overall record is rather modest. Specifically, of the
38 conventions, nine did not gather enough ratifications to enter into
force, and four have gathered only the minimum number of three 277.
Of the remaining 25 conventions, only five are in force in more than
50 states. The 1961 Apostile Convention has the highest number of
ratifications (112), followed by the 1993 Adoption Convention (96),
the 1980 Child Abduction Convention (94), the 1965 Service Abroad
Convention (71), and the 1970 Taking of Evidence Convention (59) 278.
It is no coincidence that these five conventions deal with judicial
co-operation, rather than choice of law as such, and that choice-of-law
conventions tend to be at the bottom of the ratifications list.
None of the above should be taken as criticism of the Hague
Conference. This record simply illustrates the objective difficulties
in attaining international consensus, even when the parties sit around
the same table, as this author has 279. A fortiori, consensus is even
more difficult when states act independently. A unilateral pursuit of
international uniformity is an oxymoron. As more and more states
276. See Convention on the Recognition and Enforcement of Foreign Arbitral

Awards, UNCITRAL, 10 June 1958, 330 UNTS 38.
277. See Convention of 1 February 1971 on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters ; Convention of 2 October 1973
concerning the International Administration of the Estates of Deceased Persons ;
Convention of 14 March 1978 on the Law Applicable to Matrimonial Property
Regimes ; Convention of 14 March 1978 on Celebration and Recognition of the Validity
of Marriages.
278. See Convention of 5 October 1961 Abolishing the Requirement of Legalisation
for Foreign Public Documents ; Convention of 29 May 1993 on Protection of Children
and Co-operation in Respect of Intercountry Adoption ; Convention of 25 October 1980
on the Civil Aspects of International Child Abduction ; Convention of 15 November
1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters ; Convention of 18 March 1970 on the Taking of Evidence Abroad
in Civil or Commercial Matters.
279. This author served on the Working Group that drafted the Hague Choice of
Law Principles for International Commercial Contracts and the Working Group that
drafted the tentative draft of a proposed Convention on Recognition and Enforcement
of Foreign Judgments. In the period of July-December 2012, this author chaired five
Working Groups of the EU Council on Civil Law and PIL.
96 S. C. Symeonides
independently codify PIL, they inevitably depart from the idealistic

(but shared) aspirations of the nineteenth century. Particularly, in the
last 50 years, 86 countries have enacted PIL codifications, more than
in all the previous 650 years since Bartolus’s birth. This movement has
engendered more divergence than convergence. For example, although
the Rome Convention has influenced many codifications in the field of
contracts, there is considerable divergence in other areas, as each state
wants to protect its own national interests and values 280.
Recognizing the inevitability of diverse national PIL perspectives,
Teun Struycken concedes that uniformity is “not the first goal” of the
choice-of-law process, but rather “a fortunate collateral effect of the
proper law being applicable and applied” 281. Struycken concludes
that “[t]he primary objective is finding the proper law.” 282 One cannot
disagree, but each state defines “the proper law” according to its own
notions, not those of other states – and not, for that matter, Savigny’s
notions 283.
Section 4. Interstate Uniformity

One might expect that uniformity would be easier to achieve within
a federal country like the United States than internationally. Indeed, the
US Constitution vests in Congress the power to federalize the law of
interstate conflicts 284. However, in the 227 years since the Constitution
took effect, Congress has exercised this power only five times, and
only for relatively narrow subjects 285. Thus, by default, the power and
280. See Symeonides, Codifying Choice of Law 293-344, 348.

281. A. V. M. Struycken, “Co-ordination and Co-operation in Respectful Dis-
agreement”. General Course on Private International Law, 311 Recueil des cours 5, 231
(2004). See also Vischer, “General Course”, 29 (“Harmony in law is at best a directive
but not a compelling principle”).
282. Struycken, “Co-ordination and Co-operation”, 231.
283. For example, as Basedow noted, “it is difficult to achieve simultaneously
uniformity of outcome and the protection of the weaker party by national legislation”.
J. Basedow, “Open Societies”, at 414.
284. The Constitution enunciates each state’s obligation to give “Full Faith and
Credit” to the laws and judgments of sister states, and grants Congress the power to
enact laws governing the manner in which each state will discharge this obligation. See
US Const., Art. IV, § 1.
285. The five statutes enacted by Congress under this power are relatively short,
and three of them deal with matters of family law : (1) 28 USC, § 1738 is a general and
brief implementing statute ; (2) 28 USC, § 1738A (the Parental Kidnaping Prevention
Act) provides for recognition of custody decrees ; (3) 28 USC, § 1738B (the Full Faith
and Credit for Child Support Orders Act) provides for enforcement of child support
orders ; (4) 28 USC, § 1738C (the Defense of Marriage Act “DOMA”) (declared
unconstitutional) dealt with same sex marriages ; and (5) 28 USC, § 1739 deals with
state and territorial non-judicial records.
initiative of resolving interstate conflicts remain with the states, subject

only to mild restraints imposed by the Constitution as interpreted by the
Supreme Court 286. The only concerted attempt to impose uniformity
from above was a “private” undertaking, the First Restatement, which
ended in spectacular failure with the advent of the choice-of-law
revolution.
The Restatement (Second), the most “internationalist” of the
approaches emerging from the revolution, did not abandon the goal of
international and interstate uniformity, but included it as one of seven
factors to guide the judicial search for the proper law 287. More precisely,
Section 6 of the Restatement (Second) does not mention international
uniformity as such, but instead speaks of “the needs of the interstate
and international systems” 288. It instructs the court to consider these
needs along with six other factors, some of which – for instance, “the
relevant policies of the forum” 289 – may point in the opposite direction.
An accompanying comment explains that “the most important function
of choice-of-law rules is to make the interstate and international
systems work well”, and that, “among other things”, choice-of-law
rules “should seek to further harmonious relations between states and
to facilitate commercial intercourse between them” 290. In formulating
these rules, a state “should have regard for the needs and policies of
other states and of the community of states”, in hopes that the rules may
“commend themselves”, and be adopted by other states so as to “further
the needs of the interstate and international systems and likewise the
values of certainty, predictability and uniformity of result” 291.
In the meantime, a convergence – in fact, a unification – has begun
within the European Union, which is not technically a federation but
has been acting like one in PIL matters. In a relatively short period,
the European Union has adopted several Regulations and Directives
“federalizing” major portions of PIL, including contracts, torts,

287. The list includes :
“(a) the needs of the interstate and international systems, (b) the relevant policies
of the forum, (c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue, (d) the
protection of justified expectations, (e) the basic policies underlying the particular
field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the
determination and application of the law to be applied”. Restatement (Second) of
Conflict of Laws, § 6 (2).
288. Ibid., § 6 (2).
289. Ibid.
290. Ibid., § 6, cmt. d.
291. Ibid.
98 S. C. Symeonides
successions, divorce, parental responsibility, maintenance, insolvency,

jurisdiction and enforcement of judgments, and other subjects 292. Thus,
more than a century-and-a-half after publication of Savigny’s magnum
opus, his vision of uniformity is starting to materialize, though only
within the European Union.
The EU Regulations bring uniformity within the Union and restrain
the assertion of national interests of member states against each other,
but do not restrain assertions of shared (or national) interests against
non-member states or their domiciliaries. In fact, some Regulations
openly discriminate against parties domiciled outside the European
Union. The best example is the Brussels I Regulation on jurisdiction
and recognition and enforcement of judgments. For jurisdictional
purposes, Brussels I makes an important distinction between defendants
who are domiciled in a member state (“EU defendants”) and defendants
domiciled elsewhere (“third-country defendants”).
With regard to EU defendants, Brussels I defines the permissible
bases of jurisdiction in a less expansive manner than the laws of most
member states. It does this by providing a detailed list of permissible
jurisdictional bases in Articles 7-26 and expressly excluding certain
exorbitant jurisdictional bases found in the domestic laws of some
member states, placing those bases on a “blacklist” 293. The blacklist
includes : Article 14 of the French Civil Code, which authorizes
unlimited general jurisdiction over any defendant when the plaintiff is a
French national ; Article 23 of the German Code of Civil Procedure (and
similar provisions in other EU countries), which authorizes unlimited
general jurisdiction based on the presence of any of the defendant’s
assets, no matter how small their value, in the forum state ; and “tag
jurisdiction”, as allowed in the United Kingdom, Ireland, Cyprus, and
Malta.
By contrast, with regard to third-country defendants, Brussels I
permits a member state to assert jurisdiction on any basis authorized by
its domestic law, even if that basis is among the exorbitant blacklisted
ones. Thus, unlike an EU defendant, a third-country defendant may be
sued in France under Article 14 of the French Civil Code or in Germany
under Article 23 of the German Civil Procedure Code.
292. See M. Bogdan, Concise Introduction to EU Private International Law

(3rd ed., 2015) ; G. van Calster, European Private International Law (2013) ; P. Stone,
EU Private International Law (2nd ed., 2010).
293. See Brussels I, Art. 5 (providing that “[p]ersons domiciled in a Member State
may be sued . . . only by virtue of the rules set out in [Arts 7-26]” and “the [blacklisted]
rules of national jurisdiction . . . shall not be applicable as against the[se] persons”).
This discrimination against foreign defendants is bad enough, but

Brussels I adds insult to injury by abandoning the above distinction
between the two classes of defendants when it comes to the recognition
and enforcement of a resulting judgment. Brussels I imposes the same
recognition and enforcement standards for judgments rendered against
both classes. Thus, in the above hypothetical, the French or German
judgment against a third-country defendant would be entitled to virtually
automatic recognition and enforcement in any other EU member state. In
short, third-country defendants get the worst of both worlds. As Arthur
von Mehren comments, regarding the Brussels Convention, as it was
then, the treatment of foreign defendants is “the single most regressive
step that has occurred in international recognition and enforcement
practice in [the twentieth] century” 294. Even European authors such
as Hartley castigate the “parochial attitude” 295 of the Brussels I
Regulation and characterize it as “a retrograde step” vis-à-vis the rest
of the world 296. As he points out, “In Europe, Americans and other non-
Europeans [defendants] are systematically discriminated against ; in
the United States, on the other hand, there is no discrimination against
Europeans and other foreigners” 297.
Section 5. Conclusions

In sum, although international uniformity is desirable, it is largely
unattainable. But this is not altogether problematic, because recognizing
that uniformity is unrealistic can liberate the choice-of-law process to
attend to similarly worthy, but attainable, goals of PIL. The following
chapters discuss some of these goals. For now, suffice it to say that
each state defines and prioritizes these goals for itself. Accepting the
resulting disparities is the first step in our efforts to ameliorate their
adverse consequences on the parties caught in the conflicts between
laws. Indeed, protecting these parties and generally reducing, to the
extent possible, these adverse consequences is probably the highest all-
encompassing goal of PIL.
294. A. T. von Mehren, “Recognition and Enforcement of Sister-State Judgments :

Reflections on General Theory and Current Practice in the European Economic
Community and the United States”, 81 Colum. L. Rev. 1044, 1060 (1981).
295. T. C. Hartley, “The Brussels Regulation and Non-Community States”,
in J. Basedow, H. Baum and Y. Nishitani (eds.), Japanese and European Private
International Law in Comparative Perspective, 19, 25 (2008).
296. Ibid., at 21.
297. T. C. Hartley, International Commercial Litigation : Text, Cases and Materials
on Private International Law 172 (2nd ed., 2015).
CHAPTER IV
THE “PRIVATE” IN PRIVATE INTERNATIONAL LAW
Section 1. Introduction : Private or Public Law ?
After discussing the “international” in PIL, we now focus on the

word “private”. This adjective serves two functions – one external, one
internal. Externally, it distinguishes PIL from its public international
sibling. Internally, it circumscribes the domestic scope of PIL to
horizontal relations, or disputes, between parties other than a state
acting in the exercise of governmental authority. At least since the time
of Savigny, civil law systems have adopted the view that these disputes
implicate only the interests of the parties and not the interests of their
respective home states or states with pertinent connections to the case.
Although Savigny agrees with Story in many respects, he rejects Story’s
public law notion of comity (the comity of states) and articulates the
view of PIL as private and apolitical, along with the corollary principle
of treating forum law and foreign law equally 298.
More than a century later, Gerhard Kegel reiterated this view, which
had become an article of faith in European PIL. Distinguishing between
public and private law, Kegel declared that “the state has no interest
in the field of private law in applying its own law to the maximum
exclusion of foreign law” 299 ; and, conversely, “the state does not
suffer, it is not hurt, if in some cases . . . foreign law is applied” 300. In
dealing with conflicts cases, the state “is playing the role of the judge,
not of litigant. . . . It does not decide its own affairs but the affairs of
others” 301, even if one or both parties are the state’s own citizens. As
another European writer recently noted :
“[P]rivate law – unlike public law – is neutral and apolitical. It
does not incorporate state interests and has no socially constitutive
functions. Instead, it orders personal activities and freedoms and
regulates interests of private parties. Cases with ties to multiple
298. See supra, Chap. I.5.C.

299. G. Kegel, “The Crisis of Conflict of Laws”, 112 Recueil des cours 91, 184
(1964).
300. Ibid., at 182-183.
301. Ibid., at 182.
legal orders are, therefore, not a matter of conflicts between states

and state interests but clashes between private intentions and
individual spheres of freedom.” 302
Throughout history, American law tolerated (and sometimes used,
restrictively) the public-private law distinction but never fully accepted
it. Joseph Story subscribed to this distinction 303 but, interestingly, he
classified PIL as a “branch of public law” 304. In domestic law, the
distinction gained traction later in the nineteenth century, fuelled by
a political movement to protect contract and property rights from
“the dangerous and unstable redistributive tendencies of democratic
politics” 305. However, with the turn of the twentieth century and the
Supreme Court’s 1905 decision in Lochner v. New York 306, which
constitutionalized freedom of contract, this distinction began to
encounter opposition. The opposition then became a full-scale attack
under the banner of the American Legal Realist Movement of the 1920s
and 1930s. This movement challenged the basic premise behind any
assumption that private law could be neutral and apolitical, arguing
that the use of state coercion to enforce rules of contract and property
law meant that those rules represented the exercise of public power as
much as the rules of antitrust law 307. “By 1940, it was a sign of legal
sophistication to understand the arbitrariness of the division of law into
public and private realms.” 308 Conflicts scholars of that period, such as
Walter W. Cook and later Brainerd Currie, took those views for granted
in formulating their choice-of-law approaches 309.
Since then, American writers have repeatedly voiced their “doubts as
to the substance, and indeed the supposed naturality of the distinction
302. G. Rühl, “Unilateralism”, in J. Basedow, K. Hopt and R. Zimmermann (eds.),

Max Planck Encyclopedia of European Private Law (2012).
303. See Justice Story’s concurring opinion in Trustees of Dartmouth College v.
Woodward, 17 US (4 Wheat.) 518, 559, 669-673 (1819).
304. Story, Commentaries, at § 9 (quoted supra, Chap. III).
305. See M. J. Horwitz, “The History of the Public/Private Distinction”, 130 U. Pa.
L. Rev. 1423, 1425 (1982).
306. 198 US 45 (1905).
307. See, e.g., M. R. Cohen, “The Basis of Contract”, 46 Harv. L. Rev. 553 (1933) ;
M. R. Cohen, “Property and Sovereignty”, 13 Cornell LQ 8 (1927) ; L. L. Fuller and
W. R. Perdue, “The Reliance Interest in Contract Damages”, 46 Yale LJ 52 (1936) ;
R. L. Hale, “Force and the State : A Comparison of ‘Political’ and ‘Economic’
Compulsion”, 35 Colum. L. Rev. 149 (1935).
308. M. J. Horwitz, “The History of the Public/Private Distinction”, 130 U. Pa. L.
Rev. 1423, 1427 (1982).
309. See W.W. Cook, “The Logical and Legal Bases of the Conflict of Laws”, 33
Yale LJ 457 (1924).
102 S. C. Symeonides
between the public and private legal spheres” 310. In the 1990s, Critical
Legal Studies scholars 311 “made the debunking of the public/private
divide a centerpiece of much of their thinking and a cornerstone in
their argument, if not for a strong state, then at least for a treatment of
(apolitical) ‘private’ law as (political) public law” 312. More recently,
one author wrote that “[a]ll law is public” 313, and thus the term private
law is “an oxymoron” 314. This view comes with PIL implications :
“If there is no private law, there can be no private international
law. . . . The central issue in . . . private international law . . . is a
fundamental issue of state authority ; namely, which state will be
allocated the legal power to regulate the matter ? The proposition
that all law is public indicates that all conflict of laws issues are
issues of allocation of public power.” 315
To be sure, even if one accepts the view that “all law is public”,
one can still differentiate between various gradations, or categories, of
“public” laws. For example, American courts do not enforce foreign
criminal laws, tax laws, or antitrust laws 316 but do enforce other foreign
laws such as tort and contract laws 317. The focus of our inquiry is on
how PIL systems handle conflicts involving those “other” laws. Kegel’s
statement that, in these conflicts, the state acts as a neutral “judge” of
“the affairs of others”, represents the classic PIL view. But more recent
310. H. Muir Watt (ed.), Private International Law and Public Law xiv (Vol. 1,
2015).
311. See, e.g., D. Kennedy, “The Stages of the Decline of the Public/Private
Distinction”, 130 U. Pa. L. Rev. 1349 (1982) ; M. Horwitz, supra footnote 308.
312. R. Michaels and N. Jansen, “Private Law beyond the State ? Europeanization,
Globalization, Privatization”, 54 Am. J. Comp. L. 843, 857 (2006).
313. J. P. Trachtman, “The International Economic Law Revolution”, 17 J. Int’l L.
33, 40 (1996).
314. Ibid., at 34.
315. Ibid., at 40.
317. Moreover, the method used by the Supreme Court in defining the extraterritorial
reach of certain federal statutes such as the Sherman (Antitrust) Act differs from the
method used in resolving ordinary tort or contract conflicts. See W. S. Dodge, “The
Public-Private Distinction in the Conflict of Laws”, 18 Duke J. Comp. & Int’l L. 371,
372 (2008) :
“In a torts case, the court looks to the particular forum’s choice-of-law rules
to determine which jurisdiction’s substantive law should apply. If the answer is
foreign law, the court applies that law and decides the case on the merits. In an
antitrust case, by contrast, the court does not look to the forum’s choice-of-law
rules to decide which antitrust law should govern. Instead, it construes its own
antitrust law to decide whether that law reaches the case, and if it does not, the
court simply dismisses the claim. Under no circumstances does the court decide
the case by applying foreign antitrust law.”
statements by other German writers suggest that this view is no longer

universally accepted. For example, Erik Jayme writes, “[W]hat really
characterizes contemporary PIL is a conflict of cultures” 318, and Karl
Kreuzer uses the hyperbolic phrase “clash of civilizations” 319. The
term “conflict of laws”, by which this subject is known in the United
States, is far less dramatic, but (1) it signifies the inherent difference
between domestic cases, which implicate the values of only one state,
and multistate cases, which involve laws that often embody different
objectives, policies, or values ; and (2) it recognizes that a state has
more reason to be concerned with the latter cases than with the former.
This difference partially explains, but does not necessarily justify,
Brainerd Currie’s view that the forum state cannot – indeed should not –
profess impartiality in any clash involving its own values. This chapter
examines this position (which is diametrically opposed to Savigny’s
private, apolitical view of PIL), as well as the in-between possibilities.
Section 2. Brainerd Currie and State Interests
A. Introduction
“For Savigny, most private law is apolitical ; for Currie, all law must
be understood as political.” 320 This statement may be hyperbolic 321,
but it provides a starting point for a comparison. Currie’s notion that
states have an interest in the resolution of multistate disputes between
318. E. Jayme, “Identité culturelle et intégration : le droit international privé

postmoderne”, 251 Recueil des cours 9, 52 (1995) (“En fait, ce qui vraiement caractérise
le droit international privé actuel, ce sont les conflits de cultures”).
319. K. Kreuzer, “Clash of Civilizations and Conﬂict of Laws”, 62 Rev. hellénique
dr. int’l 629 (2009).
320. R. Michaels, “Post-critical Private International Law : From Politics to
Technique”, in H. Muir Watt and D. P. Fernández Arroyo (eds.), Private International
Law and Global Governance 54, 62 (2014).
321. In fact, Michaels sees a “remarkable similarity” between Currie and Savigny :
“On the one hand, Savigny agrees with Currie that politically relevant laws
of the forum trump any colliding claims for application from foreign law. On
the other hand, Currie agrees with Savigny that cases that do not involve policy
interests of states – ‘no interest cases’ – cannot be resolved with his method. Where
they differ is the degree to which laws without policies exist. Whereas Savigny
considers substantive interests and policies in private law largely irrelevant . . .,
they are central to Currie’s analysis.” Michaels, supra previous note, at 62-63.
Further, Michaels correctly notes that
“Currie is actually more open to the application of foreign laws : whereas
Savigny does not envisage the applicability of foreign political laws at all, Currie
favors it in cases where the forum is uninterested.” Ibid., at 62 n. 33.
private parties was simply the natural extension of his legal realist view
of law as “an instrument of social control”, and his “emphasis on the
economic and social policies expressed in laws” 322. Currie postulates
that, whenever a case falls within a law’s spatial reach as delineated by
the interpretative process, the state from which that law emanates has
a “governmental interest” in its application in order to effectuate the
policy embodied in that law. In Currie’s words, an “interest . . . is the
product of (1) a governmental policy and (2) the concurrent existence
of an appropriate relationship between the state having the policy and
the transaction, the parties, or the litigation” 323.
The concept of state interests in this context was not a novelty in
American law 324. In fact, Juenger claims that Currie “was original only
in the sense that he reinvented the wheel” 325. In any event, the idea that
states have an interest in applying their law to disputes between private
parties had appeared prominently in a cluster of US Supreme Court
decisions issued in the 1930s interpreting the Full Faith and Credit
clause of the Constitution 326. What was new was Currie’s partisan
322. Currie, Selected Essays 64 (“Law is an instrument of social control. Recognition

of this fact, and emphasis on the economic and social policies expressed in laws,
would lead to a fresh and constructive approach to conflict-of-laws problems.”). For
a discussion of the influence of American legal realism on American conflicts law,
see S. Symeonides, An Outsider’s View of the American Approach to Choice of Law :
Comparative Observations on Current American and Continental Conflicts Doctrine
214-221 (1980) ; C. W. Fassberg, “Realism and Revolution in Conflict of Laws : In with
a Bang and Out with a Whimper”, 163 U. Pa. L. Rev. 1919 (2015).
323. Currie, Selected Essays 621.
324. In fact, one could argue that the same was true of European law, or at
least European legal literature. For similar ideas in European literature, see, e.g.,
A. Flessner, Interessenjurisprudenz im Internationalen Privatrecht (1990) ; C. Joerges,
Zum Funktionswandel des Kollisionsrechts (1971) ; R. Quadri, Lezioni de diritto
internazionale privato (3rd ed., 1961) ; A. Heini, “Neuere Strömungen im amerikanischen
internationalen Privatrecht”, 19 Schweizerisches Jahrbuch für Internationales Recht
31 (1962) ; C. Joerges, “Vorüberlegungen zu einer Theorie des internationalen
Wirtschaftsrechts”, 43 RabelsZ 6 (1979) ; H. Kronstein, “Crisis of ‘Conflict of
Laws’ ”, 37 Geo. LJ 483 (1948-1949) ; R. Wiethölter, “Vorbemerkungen zum IPR”, in
Deutscher Rat für IPR Erbrechtskommission, Internationales Nachlaßverfahrensrecht,
Vorschläge und Gutachten zur Reform des deutschen internationalen Erbrechts, 142
(1969) ; R. Wiethölter, “Begriffs- und Interessenjurisprudenz – falsche Fronten im
IPR”, in G. Kegel, H.-J. Musielak and K. Schurig, Festschrift für Kegel, 213, 224, 233,
239, 260 (1977).
325. F. K. Juenger, “American and European Conflicts Law”, 30 Am. J. Comp. L.
117, 119 (1982). Juenger continues as follows :
“If [Currie] had read Beale’s translation of Bartolus he would have appreciated
the venerable age of the idea that choice-of-law problems can be resolved by the
‘ordinary processes of construction and interpretation’ . . . [and] that the attempt
to divine the spatial reach of rules from their underlying policies is several.” Ibid.
326. See Bradford Elec. Light Co. v. Clapper, 286 US 145 (1932) ; Alaska Packers
Ass’n v. Indus. Accident Comm’n, 294 US 532 (1935) ; Pacific Employers Ins. Co. v.
articulation of state interests. Besides the inaccuracy of the adjective

“governmental” (as opposed to “state” or “public” interests), which
provided an easy target for critics, Currie’s articulation of state interests
suffers from several serious flaws. In particular :
(1) It was “imperialistic” in essentially ascribing to the state a selfish
wish to maximize its gains at the expense of the policies of other
states, as opposed to avoiding impairment of its own strongly held
policies and values 327 ;
(2) It was partisan in postulating that, in the vast majority of cases, a
state has an interest in applying its law only when it would benefit
its domiciliaries, but not when it would benefit similarly situated
non-domiciliaries 328 (a notion referred to hereafter as Currie’s
“personal-law principle”) ; and
(3) It was narrow in at least two respects :
(a) In failing to consider a state’s “multistate” interests – namely,
interests that stem from the state’s membership in a broader
community of states, but are not reflected directly in a state’s
domestic law 329 ; and
(b) In disregarding the interests of the individual litigants, under the
dubious reasoning that those interests are always “subsumed”
into the interests of each litigant’s home state 330.
Indus. Accident Comm’n, 306 US 493 (1939). See also Watson v. Employers Liab.
Assur. Corp. Ltd., 348 US 66 (1954).
327. See infra, Chap. IV.2.D.
328. Currie argues that a state has an interest in applying its pro-plaintiff rules only
for the benefit of local plaintiffs and its pro-defendant rules only for the benefit of local
defendants. See Currie, Selected Essays 691-721 (arguing that New York’s unlimited
compensatory damages law “is not for the protection of all who buy tickets in New
York, or board planes there. It is for the protection of New York people”). See also
Currie, Selected Essays 724, 785-786 (arguing that a state that has a guest statute or a
pro-defendant contract rule has an interest in applying them only if the defendants are
domiciled in that state).
329. Currie specifically dismisses the view that a state should be guided in its
choice-of-law decisions by the “needs of the interstate and international system”.
Currie, Selected Essays 614. He asserts that the traditional system, because of its
international origins, was overtaken by “the compulsion of internationalist and altruist
ideals” and had “guiltily suppressed the natural instincts of community self-interest . . .
[and] enforce[d] a purposeless self-denial”. Ibid., at 525. In order to compensate, Currie
champions “the rational, moderate and controlled pursuit of self-interest”. Ibid. These
adjectives offer some reassurance, as do Currie’s statements that “[t]he shortsighted,
selfish state is nothing more than an experimental model”, and “[n]o such state exists,
at least in this country”. Ibid., at 616. Nevertheless, both the tenor and many of the
specifics of his theory are far less moderate.
330. See Currie, Selected Essays 610 (Currie finds “no place in conflict-of-laws
analysis for a calculus of private interests [because] [b]y the time the interstate plane is
Given these shortcomings, one would be justified in asking why the

concept of state interests is even discussed here. It is because, at its core,
state interest is a valid concept, even if Currie articulates it in extreme
terms. Indeed, contemporary states have certain interests in the outcome
of multistate disputes between private parties. The relevant question is
not whether such interests exist, but rather whether a recognition of
their existence facilitates or impedes a rational resolution of conflicts of
laws. That question is addressed later in this chapter.
B. Do states have an interest in multistate disputes between private

parties ?
Currie’s approach encountered widespread criticism in the United

States and abroad, both of which are discussed in detail elsewhere 331.
The following discussion is limited to one key element of Currie’s
approach, the central concept of state interests. It begins with the basic
question of whether states have an interest in the outcome of multistate
disputes between private parties, a question that all of Currie’s critics
answer in the negative. One of the most caustic critics, Friedrich
Juenger, argues that the notion of a state interest in this context is “a
highly implausible construct” 332 and rejects Currie’s “hypothesis” that
states have “a deep-seated concern in the implementation of their legal
rules” 333. Juenger criticizes Currie and his followers for “[not] adducing
empirical evidence for this hypothesis” 334. Similarly, a later critic asks
rhetorically, “Can anyone cite a case in which a state appeared as amicus
curiae arguing the importance that its own law be applied ?” 335 If it
were true that “[s]tates often appear as amicus curiae asserting interests
they do hold dear” 336, the argument goes, states would submit amicus
curiae briefs urging a court to apply their respective laws. Do they ?
In the United States, the answer is yes. There is a plethora of empirical
evidence on both the existence and the assertion of state interests in
the outcome of choice-of-law disputes. For example, in practically
reached the resolution of conflicting private interests has been achieved ; it is subsumed
in the statement of the laws of the respective states”).
331. For multiple references and discussion, see Symeonides, Revolution 22-24 et
passim. For discussion of Currie’s approach, see ibid. 13-24, 365-384, et passim.
333. Ibid.
334. Ibid.
335. M. H. Gottesman, “Adrift in the Sea of Indeterminacy”, 75 Ind. LJ 527, 531
(2000).
336. Ibid.
every major international maritime conflicts case that has reached the
US Supreme Court, at least one foreign Government, and occasionally
the US Government, has filed amicus curiae briefs bringing to the
Court’s attention their interests in the outcome of litigation between
ship owners and seamen 337. The same is true of most other international
conflicts that come before the US Supreme Court. In Hartford Fire
Ins. Co. v. California 338, the British Government submitted an amicus
brief urging the application of British law in a dispute involving British
reinsurers 339. Since then, many more foreign Governments (including
the EU Commission on behalf of the 28 EU states) have filed amici
briefs, asserting their respective interests and urging the Court not to
apply US law. The following list is illustrative of recent cases wherein
such briefs were filed, with the number of foreign Government
amici briefs indicated in parentheses : American Insurance Ass’n v.
Garamendi 340 (two) ; Sosa v. Alvarez-Machain 341 (one) ; F. Hoffman-La
Roche Ltd. v. Empagran S.A. 342 (ten) ; Kiobel v. Royal Dutch Petroleum
Co. 343 (five) ; Morrison v. National Australia Bank Ltd. 344 (three).
Additionally, countless amici briefs (in some cases, over a hundred)
are filed by American, foreign, and international non-governmental
organizations, law professors, and other individuals invoking public
interests implicated in disputes between private litigants.
This phenomenon is not confined to international conflicts. For
example, in Clay v. Sun Insurance Office, Ltd. 345, an interstate conflict
involving an insurance dispute between private parties, the Florida
Attorney General appeared before the US Supreme Court to defend
Florida’s interests in applying its law 346. In Bernhard v. Harrah’s
337. For reference, see the authorities cited in S. Symeonides, “Maritime Conflicts
of Law from the Perspective of Modern Choice of Law Methodology”, Tul. Mar. LJ
223, 224-225, 228, 247 (1982).
338. 509 US 764 (1993).
339. Ibid., at 798 (citing Brief for Government of United Kingdom of Great Britain
and Northern Ireland as Amicus Curiae Supporting Petitioners).
340. 539 US 396 (2003).
341. 542 US 692 (2004).
342. 542 US 155 (2004).
343. 133 S. Ct. 1659 (US, 2013).
344. 561 US 247 (2010).
345. 363 US 207 (1960).
346. Clay involved the question of whether Florida could constitutionally apply a
statute that prohibited a contractual shortening of the limitation period for suing an
insurer, on a policy issued in Illinois to an insured who later moved to Florida and
sustained loss while there. The US Supreme Court held that Florida could do so, in part
because of its interests in protecting insureds who sustain losses within its territory. The
Court noted that : “Florida’s particular interest in this very statute is shown by the fact
Club 347, in which a California court applied California tort law imposing

civil liability on a Nevada casino, the State of Nevada filed an amicus
brief supporting the casino’s petition for writ of certiorari to the US
Supreme Court.
Finally, such briefs are not uncommon in state courts, or in lower
federal courts. In Kearney v. Salomon Smith Barney, Inc. 348, a tort
dispute between a Georgia brokerage firm and its California clients,
the California Attorney General filed an amicus brief in the California
court supporting the application of California law. In Modern Computer
Systems v. Modern Banking Systems 349, a contract dispute between
a Minnesota franchisee and a Nebraska franchisor, the Minnesota
Attorney General appeared as an amicus in a federal district court in
Nebraska and argued for the application of Minnesota law 350. These
cases serve as a good reminder that disputes between private parties
may implicate not only the interests of the parties, but also those of
their respective states.
To be sure, amicus briefs are not the only evidence of a state’s interest
in the application of its law. One can find better evidence by looking at
the actual wording of state statutes. Despite statements that statutes “do
not come equipped with labels proclaiming their spatial dimension” 351,
or that “legislatures have no actual intent on territorial reach” 352, such
evidence is plentiful. It answers the rhetorical question of whether “any
state legislature declared it important that its substantive law be chosen
in some defined category of cases having multistate contacts ?” 353
In the United States, again the answer is “yes”. As documented in
Chapter V, several state statutes contain “localizing rules” consisting
of precisely such declarations 354. These rules proclaim that the statutes
that the Attorney General of the State filed briefs and participated in oral arguments to
support the . . . [statute’s] constitutionality”. 363 US at 216.
347. 546 P. 2d 719 (Cal. 1976), cert. denied, 429 US 859 (1977).
348. 137 P. 3d 914 (Cal. 2006).
349. 858 F. 2d 1339 (8th Cir. 1988) (decided under Nebraska conflicts law), rev’d,
871 F. 2d 734 (8th Cir. 1989).
350. For numerous additional examples of state attorneys general appearing on the
side of a private litigant and advocating for their respective states’ interests, see S.
Symeonides, “American Choice of Law at the Dawn of the Twenty-first Century”, 37
Willamette L. Rev. 1, 23-24 (2000).
351. F. K. Juenger, “Conflict of Laws : A Critique of Interest Analysis”, 32 Am. J.
Comp. L. 1, 35 (1984).
352. L. Brilmayer, “Interest Analysis and the Myth of Legislative Intent”, 78 Mich.
L. Rev. 392, 393 (1980) (hereinafter Brilmayer, “The Myth”).
353. M. H. Gottesman, “Adrift in the Sea of Indeterminacy”, 75 Ind. LJ 527, 531
(2000).
354. See infra, Chap. V.4.C.
that contain them shall apply to transactions or events with certain

enumerated connections to the enacting state. Some of these rules even
expressly prohibit the contractual choice of another state’s law. The
statutes do not use phrases such as “conflict of laws” or “choice of
law”, which is why they can easily elude an electronic word search.
Even so, they do carry conspicuous “labels proclaiming their spatial
dimension” 355. In the awkward, anthropomorphic terminology of
interest analysis, these statutes proclaim the enacting state’s “interest”
(or volonté d’application) in regulating the enumerated multistate
transactions. Moreover, as also documented in Chapter V, localized
statutes are by no means an American phenomenon. We shall return to
this point later.
C. Are state interests ascertainable ?
It is true, however, that statutes expressly declaring their intended

extraterritorial reach are the exception rather than the rule. Most statutes
are either silent on the question of their application to foreign cases, or
contain “boilerplate language” 356 whose “literal catholicity” 357, if taken
at face value, would make them applicable to any and all activities,
territorial or extraterritorial. As Currie observes, “Lawgivers . . . are
accustomed to speak[ing] in terms of unqualified generality . . . [using]
words like ‘all’, ‘every’, ‘no’, ‘any’, and ‘whoever’ ” 358 because “they
ordinarily give no thought to the phenomena that would suggest the need
for qualification” 359. For example, the Jones Act purports to provide a
remedy to “[a]ny seaman” 360 who suffers an injury in the course of
his employment. Similarly, the Americans with Disabilities Act (ADA)
provides that “[n]o individual” shall be discriminated against on the
basis of disability by “any person” who owns or operates a place of
“public accommodation” 361.
355. F. K. Juenger, “Conflict of Laws : A Critique of Interest Analysis”, 32 Am. J.

Comp. L. 1, 35 (1984).
356. Hartford Fire Ins. Co. v. California, 509 US 764, 813 (1993) ; EEOC v. Arabian
Am. Oil Co., 499 US 244, 249 (1991).
357. Lauritzen v. Larsen, 345 US 571, 576 (1953).
358. Currie, Selected Essays 81.
359. Ibid., at 82.
360. 46 USC, § 688. For cases involving the extraterritorial reach of the Jones Act,
see S. Symeonides, “Maritime Conflicts of Law from the Perspective of Modern Choice
of Law Methodology”, Tul. Mar. LJ 223 (1982).
361. 42 USC, § 12182 (a). For the question of whether the ADA applies to foreign
cruise ships while in US waters, see Spector v. Norwegian Cruise Line Ltd, 545 US 119
In cases involving such statutes, it falls upon courts to determine

which of the “any and all” persons or activities the legislature intended
to regulate. Courts discharge this task daily, by determining “whether
‘any’ or ‘every’ reaches to the limits of the enacting authority’s usual
scope or is to be applied to foreign events or transactions” 362. This is
what Currie means when he writes that the court should resort to the
method of statutory “construction and interpretation” that is typically
employed in fully domestic cases. In a statement that accidentally
echoes Savigny, Currie writes, “Just as we determine by that process
how a statute applies in time, and how it applies to marginal cases, so
we may determine how it should be applied to cases involving foreign
elements.” 363
Currie’s critics charge that his “domestic method” of statutory
construction and interpretation fails to recognize the differences between
domestic and multistate cases 364, and is incapable of pinpointing the
policies underlying the conflicting rules of law 365. They also argue that,
even if such policies can be ascertained, they cannot help courts to
delineate a law’s intended territorial reach 366.
(2005) (discussed in S. Symeonides, “Cruising in American Waters : Spector, Maritime

Conflicts, and Choice of Law”, 37 J. Mar. L. & Com. 491 (2006)).
362. Lauritzen, 345 US at 578-579.
363. Currie, Selected Essays 184. The quoted statement superficially resembles
Savigny’s analogy between local or territorial limits (Oertliche Gränzen) and time
limits (Zeitliche Gränzen) in the operation of laws. See Savigny, Treatise, at 49.
Savigny discusses both limits in the same volume under the title “Conflict of Laws and
the Limits of Their Operation in Respect of Place and Time”.
364. See, e.g., L. Brilmayer, “Interest Analysis and the Myth of Legislative Intent”,
78 Mich. L. Rev. 392, 417 (1980) (“[D]omestic interpretation and conflicts interpretation
are different enterprises altogether”) ; M. Rosenberg, “The Comeback of Choice of Law
Rules”, 81 Colum. L. Rev. 946, 947 (1981) (arguing that, in resorting to the domestic
method, Currie “inescapably” implies that “the ‘foreign elements’ in a case do not call
for a distinctive mode of refereeing”). See also R. A. Leflar, “Choice-of-Law Statutes”,
44 Tenn. L. Rev. 951, 954 (1977) (“The term ‘statutory construction’ is no more than a
pretentious disguise for application of the court’s conflicts law”).
365. See, inter alia, E. J. Bodenheimer, “The Need for a Reorientation in American
Conflicts Law”, 19 Hastings LJ 731, 737 (1978) ; Brilmayer, “The Myth”, supra
previous note, at 399, 417, 424 ; P. Hay, “Reflections on Conflict-of-Laws Methodology :
A Dialogue”, 32 Hastings LJ 1644, 1661 (1981) ; F. K. Juenger, “Conflict of Laws : A
Critique of Interest Analysis”, 32 Am. J. Comp. L. 1, 33-35 (1984) ; W. Reese, “Chief
Judge Fuld and Choice of Law”, 71 Colum. L. Rev. 548, 559-560 (1971) ; M. Rosenberg,
“Two Views on Kell v. Henderson : An Opinion for the New York Court of Appeals”, 67
Colum. L. Rev. 459, 463-464 (1967).
366. See Brilmayer, “The Myth”, supra footnote 364, at 393 (“[L]egislatures have
no actual intent on territorial reach”) ; Juenger, “Critique”, supra previous note, at 35
(“[P]olicies do not come equipped with labels proclaiming their spatial dimension”).
For counter arguments, see H. H. Kay, “A Defense of Currie’s Governmental Interest
Analysis”, 215 Recueil des cours 9, 117-129 (1989) ; R. A. Sedler, “Interest Analysis
and Forum Preference in the Conflict of Laws : A Response to the ‘New Crits’ ”, 34
To the extent Currie’s critics deny the domestic method’s ability

to ascertain state policies, or at least those of the forum state, these
criticisms are unjustified. “The most important lesson taught in the
first year of law school is that an intelligent decision to apply or not to
apply a legal rule depends upon knowing the reasons for the rule.” 367
In this sense, Currie’s domestic method is just another name for the
teleological method 368, which ought to be beyond reproach, at least
among functionalist scholars. Ascertaining the telos, or purpose, of a
law is more difficult in conflicts cases than in ordinary domestic cases,
but is both a surmountable and worthy task.
Equally unjustified is the criticism of the teleological method’s ability
to delineate the intended spatial reach of the interpreted laws. The vitality
of this method has never depended on proof of actual legislative intent,
as critics assume. Without agreeing with Currie’s method, or with his
particular inferences about the spatial reach of laws, one can still accept
that the spatial reach of laws is best determined by looking to their
purpose and function. It is a separate matter that such a determination
is only half of the process of actually resolving a conflicts problem. The
other half, in which Currie’s insight is much less inspiring, is to actually
and rationally accommodate laws with overlapping spatial reach (that
is, resolving true conflicts). We shall return to this point later 369.
Having completely rejected the existing choice-of-law system,
Currie had the sense to turn to something equally well established but
more flexible and resourceful – the domestic common law method.
This opened the door to introducing functionalism into choice-of-
law thinking, allowing a more individualized handling of cases and
tempering the conflictual method by injecting it with considerations
of substantive justice. Of all the elements of Currie’s theory, this is the
least problematic.
In conclusion, even when a conflict involves statutes (or common
law rules) that do not declare their intended territorial reach, it is not
Mercer L. Rev. 593, 606-620 (1983) ; R. A. Sedler, “Reflections on Conflict-of-Laws

Methodology”, 32 Hastings LJ 1628, 1632-1635 (1981) ; R. J. Weintraub, “Interest
Analysis in the Conflict of Laws as an Application of Sound Legal Reasoning”, 35
Mercer L. Rev. 629, 630-634 (1984).
367. Weintraub, “Interest Analysis”, supra previous note, at 631.
368. See H. Baade, “Counter-Revolution or Alliance for Progress ? Reflections
on Reading Cavers, The Choice-of-Law Process”, 46 Tex. L. Rev. 141, 149 (1967)
(“[G]overnmental interest analysis is merely one of the many applications of teleo-
logical interpretation. It seeks to determine the pertinence of rules of law to multiple-
contact cases through an analysis of the purposes behind these rules”).
369. See infra, Chap. IV.E.2., Chap. V.5.F.
difficult to determine whether application of that statute or rule would

promote the policies or values of its state of origin. It is not difficult
to see that the tax base of a state like Nevada, which depends heavily
on the casino industry, would be adversely affected if that industry is
subject to civil liability under the law of another state 370 ; or that a state
like Michigan, the home of the three largest US auto makers, would
be adversely affected if they are subject to punitive damages under
the law of another state 371 ; or that a country that depends heavily on
its shipping industry would be adversely affected if that industry is
subjected to American operating and compensation standards 372. This
adverse impact is the essence of the term state “interest”.
D. Re-conceptualizing state interests
In articulating the otherwise valid concept of state interests, Currie

unfortunately uses terms that imply that a “government” has an active
desire to apply its law and, even worse, a proclivity to assert that desire
in an aggressive, imperialistic, beggar-thy-neighbour fashion. Currie
either erred or exaggerated. States do not have active desires with
regard to the outcome of private disputes. But the policies, purposes,
and values embodied in a state’s law can be adversely affected when
that law is not applied to a case the law was intended to reach. A state’s
“interest” in applying its law is simply a shorthand way of describing
this adverse consequence. Whether one calls this an “interest” or
370. Even the California court acknowledged this interest in Bernhard v. Harrah’s
Club, 546 P. 2d 719 (Cal. 1976). See ibid., at 722 (“[I]t is clear that each state [California
and Nevada] has an interest in the application of its respective law of liability and
nonliability. It goes without saying that these interests conflict”).
371. See, e.g., Kelly v. Ford Motor Co., 933 F. Supp. 465, 470 (ED Pa. 1996) (stating
that Michigan had “a very strong interest” in applying its law denying punitive damages
so as to ensure that “its domiciliary defendants are protected from excessive financial
liability”, and that by protecting companies such as Ford from punitive damages,
“Michigan hopes to promote corporate migration into its economy . . . [which] will
enhance the economic climate and well being of the state . . . by generating revenues”) ;
Ness v. Ford Motor Co., 1993 WL 996164 at *2 (ND Ill. 20 July 1993) (“Michigan
has an interest in seeing that product-liability plaintiffs are not overcompensated,
resulting in higher insurance premiums for Michigan manufacturers, higher costs, and
lost jobs”) ; In re Air Crash Disaster Near Chicago, 644 F. 2d 594, 614 (7th Cir., 1981)
(emphasizing California’s “substantial interest in the economic health of corporations
. . . which do business within its borders” and the ability of such corporations to
“enhance[] the economic well-being of the state”). For discussion of Michigan’s
protectionism of three major automakers, see S. Symeonides, “Choice of Law in the
American Courts in 1998 : Twelfth Annual Survey”, 47 Am. J. Comp. L. 327, 375-376
(1998), and the authorities cited therein.
372. See Symeonides, “Maritime Conflicts”, at 224-225, 228, 247.
“concern” or opts for a term such as “the most significant relationship”,

which the uninitiated may mistake for a mere geographical test, is a
secondary matter. The bottom line is that states are not indifferent to the
resolution of conflicts between their respective laws. Consequently, a
choice-of-law analysis that fails to consider this factor is presumptively
deficient.
This conclusion does not carry with it a wholesale, or even partial,
subscription to Currie’s particular value-system – especially the
narrow, self-centred perspective he ascribed to the forum state, and
his assumption that states are only interested in protecting their own
citizens (the “personal law” principle) 373. Currie’s perspective and
its corollaries are antithetical to the goals of private interstate and
international law 374. To paraphrase John Donne, no state is an island,
even if it is geographically so 375. A selfish pursuit of the forum’s
interests is inimical to individual justice and states’ coexistence, and
detrimental to the forum’s own long-term interests.
E. Can an interest-based approach rationally resolve conflicts ?
In sum, Currie’s basic premise that states have an interest in the

outcome of multistate disputes between private persons accurately
reflects contemporary reality. Nonetheless, Currie’s articulation of those
interests is intentionally provocative and unintentionally chauvinistic.
Properly conceived, state interests can be a good starting point for the
judicial resolution of conflicts in the United States, and perhaps also
in other common-law systems. Specifically, state interests provide the
criteria for classifying conflicts cases into three analytically helpful
373. See supra, Chap. IV.2.A.

374. See, e.g., D. F. Cavers, The Choice of Law Process 151 n. 29 (1965) (hereinafter
Cavers, Process) (asserting that some of Currie’s prescriptions are “more appropriate to
a tribal system of law than to that prevailing in the American Union”). Currie explains
that his analysis does “not imply the ruthless pursuit of self-interest by the states”, and
does not preclude what he called “rational altruism”. Currie, Selected Essays 185, 186.
See also ibid., at 549 (“In a federal union such as ours there is no room for the cycle
of discrimination, retaliation, and reciprocity. Each state may and should extend the
benefits of its laws to foreigners, not merely with the hope but with the assurance that
all other states will reciprocate as a matter of course”). However, Currie never retracted
his personal-law principle, according to which a state’s interest is confined to protecting
only its own citizens. In short, Currie first elevated a faulty assumption into a choice-
of-law principle and then relied on “rational altruism” and self-restraint to resolve the
resulting problems and curtail the inevitable excesses.
375. J. Donne, “No Man Is an Island, Meditation XVII”, in Devotions upon
Emergent Occasions 62 (1624).
categories – false conflicts, true conflicts, and “no interest” cases 376 –and
for rationally resolving false conflicts. However, as explained below,
an approach based solely on state interests encounters surmountable
difficulties in true conflicts and insurmountable difficulties in “no-
interest” cases.
1. False conflicts
Because a false conflict is, by definition, a case in which only one

state has an interest in applying its law, the application of that state’s law
(as Currie suggests) is the only sensible solution. This part of Currie’s
analysis is neither controversial nor controvertible. It is no wonder that
all other modern approaches have embraced this solution, which is a
significant improvement from the First Restatement. By basing the
choice of law on the location of a single contact, rather than on the
policies of the contact states, the Restatement often led to the random
sacrifice of one state’s interests without promoting the interests of
another 377. By contrast, Currie’s solution to a false conflict effectuates
the policies of the interested state without undermining any policies of
the uninterested state.
This is by no means a small accomplishment. In the centuries-long
history of PIL, progress has come in slow, tiny steps. Empowering the
decision-maker to separate false conflicts from other conflicts, and to
resolve false conflicts by applying the law of the only interested state,
is one of few breakthroughs in the recent PIL history. This is true even
after conceding, as one should, that reasonable minds can differ in
defining a state’s interest or on whether a particular case is in fact a
false conflict.
376. This tripartite categorization of conflicts, for which Currie deserves full credit,
is analytically useful. The three labels Currie attaches to the categories, however, are
problematic because they forejudge the answer to the basic question (i.e., whether a
state has an interest in applying its law to the particular case), a question that reasonable
minds often answer differently. For this reason, the terms “direct” and “inverse”
conflicts are preferable to Currie’s second and third labels. Direct conflicts (Currie’s
“true conflicts”) are those in which each involved state has a law that favours the party
affiliated with that state. Inverse conflicts (Currie’s “no-interest” cases) are those in
which each state has a law that favours the party affiliated with the other state. These
alternative terms objectively describe the content of each state’s substantive law,
without assuming the state does, or does not, have an interest in its application ; further,
they do not forejudge a court’s categorization of the conflict or its ultimate outcome.
See S. Symeonides and W. C. Perdue, Conflict of Laws : American Comparative,
International 150-151 (3rd ed., 2012).
377. See Currie, Selected Essays 191. See also ibid., at 589-590.
2. True conflicts
Currie’s solution to true conflicts leaves as much to be desired as does

his rationale. Currie contends that the only solution is to apply forum
law, because a court may not subordinate the forum state’s interests to
those of another state 378. Indeed, that very possibility impelled Currie
to insist that judges should not even attempt to weigh the interests of the
two states. His explanation is that judges have neither the constitutional
power nor the necessary resources to weigh conflicting governmental
interests, and should not be put in the position of having to subordinate
the forum’s interests. Currie contends that such weighing of interests
is a “political function of a very high order . . . that should not be
committed to courts in a democracy” 379.
In light of Currie’s proud adherence to the common-law tradition 380,
the above explanation is surprising. It assumes a conception of the
judicial process that does not reflect the realities of the American
common-law tradition, in which judges routinely evaluate and
weigh conflicting social policies 381. As Currie’s friend Judge Roger
Traynor, Chief Justice of California’s supreme court, wrote, “[J]udi-
cial responsibility . . . connotes the recurring choice of one policy
over another.” 382 Currie’s rationale also contradicts the basic premise
of his theory, which assumes an activist judge in every other respect.
For example, according to Currie’s own analysis, a judge must identify
and articulate the interests of the involved states in order to determine
whether a conflict is a false or true conflict. The judicial application
of this part of Currie’s analysis suggests that the determination is no
less subjective or politically sensitive than a weighing of interests. The
378. See B. Currie, “Comments on Babcock v. Jackson – A Recent Development

in Conflict of Laws”, 63 Colum. L. Rev. 1233, 1237-1238 (1963) (“In the absence of
action by higher authority, each state must be conceded the right to apply its own laws
for the reasonable effectuation of its own policies”) (emphasis added).
379. Currie, Selected Essays 182. Currie also speaks of the “embarrassment of [a
court] having to nullify the interests of its own sovereign”. Currie, Selected Essays
278-279, 357 ; B. Currie, “The Disinterested Third State”, 28 Law & Contemp. Probs.
754, 778 (1963).
380. See Currie, Selected Essays 627 (“I am proud to associate myself with the
common law tradition”).
381. See F. K. Juenger, “Choice of Law in Interstate Torts”, 118 U. Pa. L. Rev. 200,
206-207 (1969) (“Ever since conflicts law first developed, courts did precisely what
Currie would forbid them to do ; no judge has ever been impeached for inventing or
applying a choice of law rule that sacrifices forum interests”).
382. R. J. Traynor, “The Limits of Judicial Creativity”, 63 Iowa L. Rev. 1, at
12 (1977). See also ibid., at 11 (rejecting the notion that “policy is a matter for the
legislators alone”).
two tasks differ only in degree. If judges are qualified and empowered
to identify governmental interests, they neither lose nor abdicate that
power when they encounter a true conflict 383.
Fortunately, most courts that have adopted Currie’s analysis reject
his proscription of interest weighing. Instead, these courts openly and
unapologetically weigh the conflicting state interests. This is what
courts in the District of Columbia do 384, and what New Jersey courts
did before that state’s Supreme Court abandoned Currie’s approach
in favour of the Restatement (Second) 385. The same is true of California
courts, which invented another term for interest weighing : comparative
impairment 386. Rather than weighing state interests as such, California
courts weigh the impairment that would result from not applying the
law of a particular state. As Albert Ehrenzweig observed long ago, “All
courts and writers who have professed acceptance of Currie’s interest
language have transformed it by indulging in that very weighing and
balancing of interests from which Currie refrained.” 387 Moreover, in
many cases, these courts concluded that the stronger interest was that
of the foreign state rather than that of the forum. This phenomenon
383. As Cavers puts it, under Currie’s analysis, the “[w]eighing of interests after
interpretation is condemned : weighing of interests in interpretation, condoned, not to
say, encouraged”. D. F. Cavers, “Contemporary Conflicts in American Perspective”,
131 Recueil des cours 75, 148 (1970). In one of his last writings, Currie advises that in
some cases, the judge should subject the laws of the involved states to a more moderate
and restrained interpretation, which could lead to a conclusion that one of those states is
not as interested as it might appear. If so, this would be an apparent conflict in which the
judge should apply the law of the other state. See B. Currie, “The Disinterested Third
State”, 28 Law & Contemp. Probs. 754, 763, 764 (1963). Currie unpersuasively asserts
that the process of re-evaluating the two states’ interests is qualitatively different from
weighing them. See Currie, Selected Essays 759.
384. See, e.g., Kaiser-Georgetown Comm. Health Plan, Inc. v. Stutsman, 491 A. 2d
502 (DC 1985) ; Stutsman v. Kaiser Found. Health Plan, 546 A. 2d. 367 (DC 1988) ;
Cárdenas v. Muangman, 998 A. 2d 303 (DC 2010). See also Biscoe v. Arlington
County, 738 F. 2d 1352 (DC Cir. 1984) ; Jaffe v. Pallotta Teamworks, 374 F. 3d 1223
(DC Cir. 2004).
385. See, e.g., Gantes v. Kason Corporation, 679 A. 2d 106 (NJ 1996) ; Eger v. E.I.
Du Pont De Nemours Co., 539 A. 2d 1213 (NJ 1988).
386. See Bernhard v. Harrah’s Club, 546 P. 2d 719 (Cal. 1976) (adopting Baxter’s
comparative impairment approach as the method for resolving cases that interest
analysis classifies as true conflicts). Baxter explained his approach in W. F. Baxter,
“Choice of Law and the Federal System”, 16 Stan. L. Rev. 1 (1963). For subsequent
applications of this mix, see Offshore Rental Co. v. Continental Oil Co, 583 P. 2d
721 (Cal. 1978) ; Kearney v. Salomon Smith Barney, Inc., 137 P. 3d 914 (Cal. 2006) ;
McCann v. Foster Wheeler LLC., 225 P. 3d 516 (Cal. 2010).
387. A. Ehrenzweig, “A Counter-Revolution in Conflicts Law ?”, 80 Harv. L. Rev.
377, 389 (1966). Currie’s response was sharp and short : “I do not care whether courts
undertake to weigh and balance conflicting interests or not.” But when they do, “such
action can find its justification in politics, not in jurisprudence”. Currie, Selected Essays
600-601. For a more restrained response, see ibid., at 183, 274.
suggests that, although Currie’s analysis favours the lex fori, such bias
is not an inherent characteristic of all interest-based approaches.
Thus, the way out of Currie’s impasse in true conflicts is impartial
interest weighing, comparative impairment 388, or “consequentialism” 389.
The latter is the principle underlying the Louisiana choice-of-law
codification of 1991 390, and the last iteration of Russell Weintraub’s
approach 391 ; namely, selecting the law of the state whose interests
would suffer the most serious adverse consequences if its law were not
applied 392.
The common denominator between (1) resolving false conflicts by
applying the law of the only interested state, and (2) resolving true
conflicts by applying the law of the state with the greatest impairment, is
the principle of accommodation of state interests. Rather than thinking
in terms of advancing the interests of one state at the expense of those
of another, the decision maker should aspire to avoid frustrating the
interests of the state with the most to lose from an adverse choice of
law. In false conflicts, that state is the only interested state. In true
conflicts, it is the state with the strongest interest. Accommodation is
a unilateralist principle in that, rather than denying the existence of
state interests, it openly acknowledges them. The fact that it attempts to
accommodate these interests makes it a benevolent or accommodative
unilateralism, as opposed to Currie’s aggressive, imperialistic version.
388. See W. F. Baxter, “Choice of Law and the Federal System”, 16 Stan. L. Rev.
1 (1963).
389. This term originated in theology to describe a doctrine postulating that
the morality of an act is to be judged solely by its consequences. In choice-of-law,
consequentialism stands for the proposition that the quality of a choice-of-law decision
is to be judged by the consequences it produces on the interests and values embodied
in the conflicting laws.
390. See S. Symeonides, “The Conflicts Book of the Louisiana Civil Code :
Civilian, American, or Original ?”, 83 Tul. L. Rev. 1041, 1049-1054 (2009). For the
differences between the Louisiana approach and Baxter’s and California’s comparative
impairment approach, see S. Symeonides, “Louisiana’s New Law of Choice of Law for
Tort Conflicts : An Exegesis”, 66 Tul. L. Rev. 677, 691-692 (1992).
391. See R. J. Weintraub, Commentary on the Conflict of Laws 371 (5th ed., 2006)
(proposing a “consequences-based approach” that “chooses law with knowledge of
the content of the laws of each of the [involved] states . . . [and] seeks to minimize the
consequences that any such state is likely to experience if its law is not applied”). See
also ibid., at 380 (stating that the Louisiana codification is based on such an approach).
392. For an example of such a resolution of true conflicts, see Articles 3543 and 3544
of the Louisiana codification. The Articles provide that, subject to some qualifications,
cases in which the tortfeasor’s conduct occurred in one state, while the victim’s injury
occurred in another state with a higher standard of conduct or financial protection for
the victim, are governed by the law of the latter state if the tortfeasor should have
foreseen that the injury would occur in that state.
3. No-interest cases

Ironically, no-interest cases are more problematic for interest analysts
than true conflicts. It is perfectly logical and consistent to resolve a true
conflict by applying the law of the state with the strongest interest, or
whose interests would otherwise suffer the most serious impairment.
But what is one to do in the no-interest cases ? Try to find the least
disinterested state ? Put another way, Currie’s analysis, as it is built
around the notion of state interests, comes to an impasse when neither
state has an interest. In order to resolve the conflict, one must look for
options outside the framework of interest analysis instead of simply
recalibrating state interests or searching for phantom common policies.
In this sense, Currie’s solution of applying the law of the forum as the
residual law is precisely that – a solution that lies outside the framework
of interest analysis.
Once it is understood that the solution to the no-interest conundrum
must be sought outside the framework of interest analysis, other options
become more palatable. Currie’s lex fori solution is practical and
efficient, but it should be compared to other options, such as (1) a return
to territorialism, which was the established system prior to the advent
of interest analysis ; or (2) a resort to material justice considerations.
Interestingly, and despite contrary assumptions or expectations,
judges have not found Currie’s lex fori solution appealing in no-interest
cases. A telling example is presented by tort cases in which the parties
are domiciled in different states, and both the conduct and injury
occurred either in the tortfeasor’s home state (which has a law protecting
the victim), or in the victim’s home state (with a law protecting the
tortfeasor). In these cases, the courts applied the law of the state with the
three contacts, even when it was not the forum state 393. The Louisiana
and Oregon codifications have adopted the same solution 394.
F. Summary
Currie was essentially correct in postulating that (1) multistate
disputes between private parties implicate the interests of the states with
significant contacts with the dispute, in addition to the interests of the
parties ; and (2) in order to identify those interests, one must examine
the substantive laws of the involved states, ascertain their underlying

394. See La. Civ. Code, Art. 3544 (2) (a) ; Or. Rev. Stat., § 15.440 (3) (b).
purposes or policies, and determine whether they are implicated in the

case at hand.
However, the way in which Currie conceives and articulates these
interests conjures Cold War memories or conditions of economic
warfare between states. Properly conceived, a state’s interest in the
realm of conflict of laws lies not in selfishly maximizing its gains to
the detriment of other states, but in avoiding an adverse impact on its
strongly held policies or values. This difference in conception is not
as consequential in false conflicts, which implicates only one state’s
interests, but it is problematic in true conflicts, especially because
of Currie’s proscription of interest weighing. Such proscription was
another error of Currie’s, which can be (and has been) corrected by
courts that follow his approach. The correction can consist of either
comparing the strength of the conflicting state interests or, better yet, as
suggested here, by weighing the adverse consequences that the choice-
of-law decision would have on the interests of each involved state, and
applying the law of the state that would suffer the most by an adverse
decision. This leaves conflicts that cannot be resolved through the
previous two steps, including cases in which none of the involved states
has an interest in applying their law. In those cases, the governing law
should be chosen by resorting to other choice-of-law criteria, including
territorial considerations.
Section 3. Not “Only in America” :
Recognition of State Interests Elsewhere
A. Not for export
The preceding discussion may be of little interest to readers outside
of the United States. Many foreign critics view Currie’s approach
as just another American peculiarity. For instance, Michael Bogdan
concludes :
“[E]ven if the governmental interest analysis could be regarded
as suitable for conflicts of law within the United States (which,
however, is very doubtful), it can hardly be transplanted into
conflicts between the legal systems of completely independent
countries with substantial differences not only in the contents of
their substantive legal rules but also in their social structure and
socially accepted values.” 395
395. M. Bogdan, “Private International Law as Component of the Law of the

Forum”, 348 Recueil des cours 9, 63 (2011) (hereinafter, Bogdan, “Law of the Forum”).
One can question some of the premises of Bogdan’s statement, but

not his conclusion that Currie’s approach as such is not for export.
Currie never made, nor could he make, such a claim – if only because
he didn’t care 396. However, the question here is not whether Currie’s
approach is transplantable elsewhere, but whether his core notion that
states have an interest in the outcome of multistate disputes between
private parties is as alien to other legal systems as some critics assume ;
in other words, whether PIL is truly private. A good way to answer this
question is to turn to the official and real world of legislation.
B. Unilateralist tools

Most PIL codifications enacted in the last 50 years employ a whole
panoply of devices designed to protect specific values or interests of
the forum state in the international arena. Chapter V documents this
pervasive phenomenon in detail. In addition to employing multiple
unilateral rules in fields traditionally viewed as falling within the
private law sphere 397, these codifications give priority to the forum
state’s mandatory rules, which by definition embody important public
interests 398. To the same end, many states insert localizing rules
in substantive “private-law” statutes, mandating the application of
those statutes in derogation of choice-of-law rules contained in PIL
codifications 399.
The widespread use of unilateralist devices confirms that contem-
porary legislatures understand that many categories of conflicts cases
implicate not only the private interests of the disputing parties, but also
public or state interests. This should not be surprising. Legislation is
the formal expression of a sovereign’s will, which in a democracy is
the collective will of its people. If a statute regulating domestic cases
is meant to protect and promote broad societal interests (among other
values), why should a choice-of-law rule or statute intended for multi-
state cases ignore those interests 400 ? The survey of recent PIL codifi-
396. See S. Symeonides, An Outsider’s View of the American Approach to Choice

of Law : Comparative Observations on Current American and Continental Conflicts
Doctrine 32-34 (1980).
397. See infra, Chap. V.4.A.
400. According to Jürgen Basedow,
“[W]here States . . . consider certain values and legal institutions as foundatio-
nal . . . [they] will usually take a unilateral approach : all they are interested in is
the effectiveness and the scope of their own regulations. They rarely look abroad
for corresponding rules in other countries.” J. Basedow, “Open Societies”, at
cations and other statutes undertaken in the next chapter emphatically

answers this question in favour of those interests 401. To quote one Euro-
pean author : Throughout history, “[w]hether cloaked in terms of terri-
toriality, public policy, governmental interests, or Sonderanknüpfung,
the protection of national public interests has always outweighed any
other choice-of-law consideration” 402.
C. Multilateral but non-neutral rules
Moreover, a careful review of these codifications reveals that states

protect their interests not only through unilateral rules and other
unilateralist devices, but also through certain multilateral rules. As
Michael Bogdan acknowledges :
“[T]he bilateral nature of a conflict rule does not guarantee that

the rule treats foreign law and the lex fori alike, even though such
equality of treatment is normally considered desirable as a matter
of principle. A bilateral conflict rule may expressly require more
for the application of foreign law than for the application of the
lex fori . . ., and it may also discriminate against foreign law in a
covert way.” 403
Indeed, contemporary codifiers know how to draft multilateral choice-

of-law rules that appear facially neutral, but are calculated to lead to the
application of forum law more frequently than foreign law. Even during
the idealistic period of the late nineteenth and early twentieth centuries,
it was widely acknowledged that the debate on whether to use nationality
or domicile as a connecting factor for status and succession issues,
though phrased in lofty deontological terms, was essentially a pragmatic
debate about conflicting national interests of countries with emigrating
416. Basedow also notes that “there is now a new and increasingly discernible
trend in Western societies to impose their own values and principles, sometimes in the
guise of fundamental or human rights claiming universal respect.” Basedow, “Open
Societies”, at 448.
401. See infra, Chap. V.5.A.
402. T. M. de Boer, Living Apart Together 204. See also Basedow, “Open Societies”,
at 469 (detecting “an inclination of the courts to identify numerous mandatory rules
and principles of the lex fori with public policy or overriding mandatory provisions
which have to be enforced at any cost”), and ibid., at 448 (characterizing as a “political
function” the courts’ determination of “whether the imperative norms of the forum
State are affected by the facts of a pending case and whether they are opposed to the
decision of the case under foreign law”).
403. Bogdan, “Law of the Forum”, 86.
populations and those with immigrating populations 404. Countries with

emigrating populations opted for nationality as the connecting factor,
in order to maintain a bond with their emigrating citizens ; by contrast,
countries with immigrating populations chose domicile as a means of
assimilating the immigrants living in their territory, while also avoiding
the application of foreign laws. As Louis de Winter notes, “Hardly
anybody will dispute nowadays that the romantic grounds advanced by
Mancini for the application of the nationality principle were inspired
by political motives.” 405 Of course, the same observation could apply
to the proponents of domicile 406. “Political” is not a dirty word in this
context, but one who prefers more sanitized or nuanced expressions
would speak in terms of state policies or interests.
To provide a realistic, contemporary hypothesis, suppose that
for products liability conflicts : (1) country A, a net exporter of large
quantities of products, has pro-manufacturer substantive law and
adopts a choice-of-law rule calling for the application of the law of
the producer’s home state ; and (2) country B, a net importer, adopts
a rule giving consumers a choice between the laws of the victim’s
home state, the place of injury, the place of the product’s acquisition,
or the producer’s home state. Both of these rules are bilateral, and thus
ostensibly neutral. However, in their actual operation, the first rule would
serve the exporting country’s interest in protecting its manufacturers
through the application of its pro-manufacturer substantive law, while
the second would serve the importing country’s interest in protecting
its consumers by affording them several choices for the applicable law.
Many countries that are net importers of products have adopted
pro-consumer choice-of-law rules similar to the hypothetical rule of
country B 407. Tunisia, for example, provides the consumer with a choice
404. See, e.g., S. Vrellis, “Rapport grec”, in S. Symeonides (ed.), Progress or

Regress ? 247-248 (“Sous certains aspects, le choix du législateur en ce qui concerne le
facteur de rattachement prépondérant, qui reste encore en Grèce . . . la nationalité, est un
choix imposé par le souci de satisfaire aux intérêts nationaux ou étatiques, à une époque
où la Grèce était un pays d’émigration, donc un pays qui cherchait à maintenir ses liens
avec ses ressortissants qui s’installaient à l’étranger ainsi qu’avec les descendants”) ;
S. Vrellis, “Introductory Observations”, para. 82.
405. L. I. de Winter, “Nationality or Domicile ? The Present State of Affairs”, 128
Recueil des cours 344, 400 (1969).
406. See F. K. Juenger, “American and European Conflicts Law”, 30 Am. J. Comp.
L. 117, 130 (1982) (“Whatever one might say about attempts by emigration countries
to retain some hold over their citizens abroad, nations that attract large numbers of
immigrants clearly court trouble if they disregard the very real nexus that group of their
population has with their new homeland. Stubborn insistence on nationality as the only
legal tie that matters is bound to swamp their courts with foreign-law issues”).
407. See Symeonides, Codifying Choice of Law 96-98.
from among the laws of the defendant’s principal place of business or

domicile, the state in which the product was acquired, the victim’s habitual
residence, and the state of injury 408. The codifications of Azerbaijan,
Belarus, Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan allow the
first three choices 409, while the Quebec codification gives consumers
“only” two choices : (1) the state of the defendant’s principal place of
business or, in the absence thereof, habitual residence ; and (2) the state
in which the product was acquired 410. However, the same codification
also provides that Quebec law “imperative[ly]” applies to products
liability actions for injury outside (or within) Quebec “as a result of
exposure to or the use of raw materials . . . originating in Quebec” 411.
Thus, Quebec protects Quebec consumers injured by foreign producers
as well as certain Quebec producers injuring foreign consumers.
No country has adopted a rule that favours manufacturers as blatantly
as the hypothetical rule of country A described above. However, one
major exporter – Japan – has come very close. The new Japanese
codification calls for the application of the law of the state of the
product’s delivery and, if delivery in that state was not foreseeable, then
the law of the state of the producer’s principal establishment 412. Looked
at in isolation, this rule does not unduly favour Japanese manufacturers
because it does subject them to the laws of the states in which their
products are foreseeably delivered. However, the protectionist element
surfaces in two unilateral rules to which this rule is subject. The first
rule is a double-actionability rule that provides that when foreign
law governs a tort, the victim may not claim damages or “any other
remedies” under that law if the injurious conduct is not “unlawful”
under Japanese law 413. This means, for example, that if an erroneous
description of the product’s qualities is not “unlawful” under Japanese
law, but is unlawful under the otherwise applicable foreign law, the
consumer would not be entitled to any remedy in Japan. The second
unilateral rule provides that, even if the injurious conduct is unlawful
under both foreign law and Japanese law, the victim “may not claim
408. See Tunisian codif., Art. 72.

409. See Azerbaijan codif., Art. 27 ; Belarus codif., Art. 1130 ; Kazakhstan codif.,
Art. 1118 ; Kyrgyzstan codif., Art. 1203 ; Tajikistan codif., Art. 1227 ; Ukrainian codif.,
Art. 50 ; Uzbekistan codif., Art. 1195.
410. Quebec codif., Art. 3128.
411. Quebec codif., Art. 3129. For a critique of this Article and Article 3151, see
H. P. Glenn, “La guerre de l’amiante”, 80 Rev. critique dr. int’l priv. 41, 59 (1991).
412. See Japanese codif., Art. 18.
413. Japanese codif., Art. 22 (1).
any greater recovery of damages or any other remedies than those

available under Japanese law” 414. Thus, a Japanese manufacturer may
not be forced to provide greater relief or pay higher damages than those
provided by Japanese law 415.
Rome II avoids a pro-defendant rule like the Japanese formula,
as well as an overtly pro-plaintiff rule like those previously adopted
in countries such as Italy and Switzerland, which give plaintiffs two
choices on the applicable law. Instead, Rome II adopts a complex
provision, Article 5, which is based on a sequential combination of
contacts and cascading connecting factors. On its face, Article 5 seems
perfectly neutral. Nonetheless, this Article leads to the application of
the law of the victim’s habitual residence in the majority of cases 416.
This too is a seemingly neutral result, but it may not be so in its actual
operation. When the plaintiff is a resident of an EU country with a
generous pro‑consumer law (e.g., France) and the manufacturer is based
in a state with a pro-manufacturer law (e.g., Germany), the plaintiff will
be protected under French law. But if the plaintiff is a habitual resident
of, for instance, the Central African Republic, the same Article will
ensure that the German defendant will be held accountable (or perhaps
unaccountable) under the lower standards of the plaintiff’s foreign
residence. Thus, like the Quebec rules described above, this seemingly
neutral, bilateral rule protects EU consumers injured by foreign (or EU)
manufacturers, and EU manufacturers whose products injure foreign
consumers. It confirms the astute observation that “[a]n apparently
blind choice of law rule . . . can hide a firm substantive policy goal” 417,
which some call a state interest.
To be sure, Rome II does not use the term “state interest”. For
example, its Preamble describes Rome II’s goal as “ensur[ing] a
reasonable balance between the interests of [the parties, i.e.,] the person
claimed to be liable and the person who has sustained damage” 418.
However, closer examination reveals that Rome II recognizes that
many tort conflicts implicate not only the interests of the litigants but
414. Japanese codif., Art. 22 (2).

415. The converse phenomenon occurs when a country that has a pro-consumer
substantive law makes it unavailable to foreign consumers.
416. See Symeonides, “Rome II”, 207-209.
417. M. Fallon and J. Meeusen, “Belgian Report”, in S. Symeonides (ed.), Progress
or Regress ? 112. See also F. Pocar and C. Honorati, Italian Report, in Progress or
Regress ? 289 (“[T]he use of a specific connecting factor could achieve (or jeopardize)
certain results of substantive law”).
418. Rome II, recital (16).
also broader societal, public, and (thus) state interests. For example,
with regard to products liability, recital 20 of Rome II speaks of
the policies of “fairly spreading the risks . . . protecting consumers’
health, stimulating innovation, securing undistorted competition and
facilitating trade” 419. With regard to unfair competition, recital 21
speaks of the need to “protect competitors, consumers and the general
public and ensure that the market economy functions properly” 420.
Recital 25, concerning environmental torts, provides that the need for
a “high level of [environmental] protection” and the “principle that the
polluter pays” justify a choice-of-law rule “discriminating in favour of
the person sustaining the damage” 421. Finally, recital 31 recognizes the
need to impose certain restrictions on the parties’ power to choose the
governing law in order to protect weaker parties 422.
More importantly, some of Rome II’s dispositive articles can only
be explained in terms of public (state) interests, rather than private
interests. Besides Article 26, which codifies the traditional ordre public
exception, and Article 16, which allows the forum to interpose its own
mandatory rules, many other provisions of Rome II are designed to
serve specific substantive polices. The clearest example is Article 7,
which in cross-border environmental torts serves the substantive policy
of the “polluter pays” by allowing the plaintiff to choose the more
favourable law of either the state of conduct or the state of injury 423.
Other less obvious examples include Articles 6 (4) and 8 (3), which
prohibit choice-of-law agreements in cases of unfair competition,
restriction to competition, and infringement of intellectual property
rights ; Article 14 (2)-(3), which prohibits choice-of-law clauses to the
extent they violate certain mandatory rules of a non-chosen state or
of the European Union ; and Article 14 (1) (b), which allows pre-tort
choice-of-law clauses, though only in contracts between commercial
parties and subject to other limitations.
D. Constitutionalization of PIL

Another development that has blurred the private-public line is
the constitutionalization of PIL in many European countries. This

423. For discussion of this article, see S. Symeonides, “Rome II and Tort Conflicts :
A Missed Opportunity”, 56 Am. J. Comp. L. 173, 209-211 (2008).
development began in 1971, with the well-known decision of the

German Federal Constitutional Court known as the Spanierbeschluss
(the “Spaniard’s case”) 424, which involved the right of a Spanish
national domiciled in Germany to marry a German divorcee. At that
time, Spanish law prohibited divorce and did not allow the marriage.
The Court held that the fact that German choice-of-law rules required
the application of Spanish law was not a permissible ground on which
to deny the parties the fundamental right to marry guaranteed by
Germany’s Basic Law. This meant that the lower court should either
refuse to apply Spanish law by aligning the ordre public exception with
the Basic Law, or directly grant this constitutional right to the involved
parties. In either case, the clear message was that the public values or
interests embodied in the Basic Law trumped the principles of PIL.
The Spanierbeschluss was a harbinger of many similar decisions
by both national courts and later the European Court of Human
Rights 425. For example, in 1982, the German Federal Court of Justice
(Bundesgerichtshof) held the German choice-of-law rules giving
priority to the national law of the husband in family law disputes
unconstitutional 426. In 1987, the Italian Constitutional Court held
to the same effect with regard to Italy’s choice-of-law rules 427. As a
knowledgable human rights scholar observed at the time, “Today, the
forum’s rules determining the applicable law are not immune from
scrutiny under constitutional or human rights law.” 428
In the meantime, the transformation of the European Economic
Community into the European Union brought about a federalization of
some parts of European PIL, and a constitutionalization of others. One
of the consequences of the latter development is that the principle of
non-discrimination and other fundamental rights, as defined at the Union
level, now pre-empt national choice-of-law rules and thus “overcome
both the national and the private character of classical choice of law” 429.
424. See 31 BVerfGE 58 (4 May 1971).

425. For expert discussion, see P. Kinsch, “Droits de l’homme, droits fondamentaux
et droit international privé”, 318 Recueil des cours 9, 226-287 (2005) ; P. Kinsch,
“Choice of Law Rules and the Prohibition of Discrimination under the European
Convention on Human Rights”, 29 Ned. Int’l PrivR. 19 (2011). See also L. R. Kiestra,
The Impact of the European Convention on Human Rights on Private International
Law (2014).
426. See 86 BGHZ 57 (8 December 1982).
427. See Corte cost. 26 February (5 March) 1987, No. 71 Foro it., I, 2316 (1987).
428. P. Kinsch, “Human Rights and Private International Law”, in Basedow et al.
429. R. Michaels, “The New European Choice-of-Law Revolution”, 82 Tul. L. Rev.
1607, 1625 (2008).
One example of this development is the 2003 decision of the European

Court of Justice (ECJ) in the Garcia Avello case 430. The Court held that
children with dual Belgian and Spanish citizenship residing in Belgium
were entitled to use their dual surname under Spanish law, even though
the Belgian choice-of-law rule required the application of Belgian law.
In Grunkin-Paul, the child was a German citizen born in Denmark to
German parents, and was registered in Denmark under a hyphenated
surname combining both parents’ surnames according to Danish law.
The ECJ held that the child had a right to have his hyphenated surname
registered in Germany, even though the German choice-of-law rule
required the application of German law, which did not allow the double
surname under those circumstances 431.
A great deal more can be said about the constitutionalization of
PIL, but for the limited purposes of this discussion, we conclude
with Horatia Muir Watt’s observation that this phenomenon entails a
“reversal of the relationship between the public and the private spheres”
and “the reconnection of private international law to a political (public)
horizon” 432.
As the above discussion illustrates, the notion that PIL is private

law is riddled with innumerable exceptions, even in Europe. That
contemporary PIL codifiers find it necessary to employ so many tools
for the protection of national interests blurs the public-private law
distinction that used to be so entrenched in European law. “[E]ven
contract law, the most emblematic area of the liberal legal framework
for the market economy, can hardly be seen to stand alone from public
regulation and enforcement.” 433 As Michel Rosenfeld notes :
“[I]f government departs more and more from a purely
mediating role, and replaces freedom of contract with a contract
law regime replete with directives and restrictions in the name
of the public good, or, in other words, if contract law becomes
430. Case C-148/02, Garcia Avello v. Etat Belge, 2003 ECR I-11, 613.
431. Case C-353/06, Grunkin-Paul v. Standesamt Niebüll (14 October 2008). For an
extensive, thoughtful discussion of this case, as well as Garcia Avello, see M. Lehman,
“What’s in a Name ? Grunkin-Paul and Beyond”, 10 Ybk. Priv. Int’l L. 135 (2008).
432. H. Muir Watt (ed.), Private International Law and Public Law xvii (Vol. 1,
2015).
433. Ibid., at xiii.
increasingly paternalistic, then eventually it might appear to

confound or cross the line between private and public law.” 434
Today, many European authors recognize that :
– “Economic regulatory policies are not a monopoly of public law”, and
there is at least an “intermingling of private and public interests” 435.
– “The State’s concern for public welfare and the economic order has
extended to relations between private parties” and has “reduced
the significance of the distinction between ‘ius quod ad statum rei
Romanae’ and ‘ius quod ad singulorum utilitatem spectat’ ” 436.
“Public and private law have become increasingly interwoven.” 437
– “The old dichotomies between public law and private law . . . are
gradually fading”, and PIL “is not exclusively concerned with
international relationships between private parties” 438.
– “[P]rivate law is not as private as some may be tempted to think.
Being law it reflects interests of society as a whole.” 439
– “[C]onflict rules . . . are normally enacted and applied in the forum
country’s own interest and have the task of advancing its policies” 440
and “serve in principle the interests of the forum country rather than
the interests of other countries” 441.
– “The forum state, as the author of conflicts rule, is inspired by its
own regulatory interests.” 442
434. M. Rosenfeld, “Rethinking the Boundaries between Public Law and Private
Law for the Twenty First Century : An Introduction”, 11 Int’l J. Con. L. 125, 126 (2013).
435. H. Muir Watt, “Choice of Law in Integrated and Interconnected Markets :
A Matter of Political Economy”, 9 Colum. J. Eur. L. 383 (2003). For an extensive
discussion of these ideas and relevant authorities, see H. Muir Watt, “Aspects
économiques du droit international privé”, 307 Recueil des cours 25 et seq. (2005).
436. Vischer, “General Course”, 150 (quoting Ulpian, Dig. 1.1.2).
437. Ibid.
438. T. M. de Boer, “Living Apart Together” 195. See also C. W. Fassberg, “Realism
and Revolution in Conflict of Laws : In with a Bang and Out with a Whimper”, 163 U.
Pa. L. Rev. 1919, 1937 (2015) (“Recognizing the policy implications of private law
rules challenges the traditional assumption that choice of law deals only with private
law and that private and public law are clearly distinct”).
439. A. V. M. Struycken, “Coordination and Co-operation in Respectful
Disagreement : General Course in Private International Law”, 311 Recueil des cours
33 (2004). See also B. Audit, “Le droit internationale privé en quête d’universalité”,
305 Recueil des cours 9, 477 (2003) (“Conçu dans un environnement philosophique
assimilant le droit privé à un espace de liberté, la méthode de la règle de conflit a évolué
à mesure que le droit privé devenait plus finaliste ou dirigiste”).
440. Bogdan, “Law of the Forum”, 64-65.
441. Ibid., at 46. However, Bogdan strongly disagrees with Currie’s assumptions
about the forum’s interests. See ibid., at 75-77.
442. Bucher, “La dimension sociale”, 170 (“L’Etat du for, auteur de la règle de
conflit, s’inspire de son propre intérêt de régulation quant à la loi applicable aux
Frank Vischer, the principal drafter of the Swiss PIL codification,

conceded as much. Although he posited that “the safeguard of the
interests of individuals” should be the primary concern of PIL, Vischer
also noted,
“[P]ublic interests are also involved. Social concern, as for
instance the protection of the weak, has led to a greater involvement
of the State in private law relations. The individual cannot escape
the influence of the State through private international law.” 443
Vischer candidly concludes that PIL is “an instrument often used for
furthering State policies and advancing solutions which correspond
best with the national notion of justice, an instrument which States do
not easily renounce”, and that “[t]he antinomy between the source and
the objective persists and will probably continue to do so in the near
future” 444.
As another inside observer of the European PIL scene recently
wrote :
“PIL is undergoing a metamorphosis : from a discipline which
presented itself traditionally as a fairly isolated discipline with its
own nature PIL is becoming a discipline whose function seems to
be related to policy considerations that often have their place in
essence outside PIL. With this PIL seems more and more to lose
the character of neutrality. PIL is challenged to leave the cocoon
position in which it had traditionally nestled down.” 445
In conclusion, PIL is no longer as “private”, apolitical, or neutral
as Savigny perceived it. His perception was justified by the condi-
tions prevailing during his time, but those conditions barely out-
lasted the nineteenth century. As Jürgen Basedow notes, “[T]he
rise of the interventionist and welfare state of the twentieth century
situations internationales”). See also S. Vrellis, “Introductory Observations”, para. 85

(“Conflicts rules express and effectuate policies determined by the values and goals of
the legal order of the forum state”).
443. Vischer, “General Course”, at 31.
444. Ibid., at 22.
445. V. Van Den Eeckhout, “The Instrumentalisation of Private International Law
– Quo Vadis ? Rethinking the ‘Neutrality’ of Private International Law in an Era
of Globalisation and Europeanisation of Private International Law”, in J. S. Bergé,
S. Francq and M. Gardenes Santiago (eds.), Boundaries of European Private
International Law. Les frontières de droit international privé européen. Las fronteras
del derecho internacional privado europea 387, 391 (2015).
has profoundly changed the model of society underlying Savigny’s

propositions.” 446
If PIL is not “private”, states cannot be apathetic spectators in
conflicts cases. States are not indifferent to the outcome of multistate
disputes between private persons as the classical school presumed.
At the same time, states are not as selfish as Currie finds them to
be. The use above of the italicized double negative is intentional. It
signals the difference between Currie’s conception of state interests and
the reconceptualization of those interests as suggested above 447. There
is a difference between saying that a state is interested in applying
its law at any cost, and saying that a state, in certain cases, may be
adversely affected if its law is not applied. The difference is not only
psychological – it has methodological implications as well. A method
such as Currie’s version of ethnocentric unilateralism is unnecessarily
bellicose, potentially unfair to private litigants, and counterproductive
in the long run.
The next chapter discusses the question of whether these two
methods should, or can, be reconciled.
446. Basedow, “Open Societies”, at 47. See ibid., at 46-47 :

“In the middle of the nineteenth century, when liberal capitalism reached its
peak and Savigny wrote his treatise, State interventions into economic and social
life were indeed increasingly renounced and became exceptional. Consequently,
Savigny did not write more than a very short chapter of seven pages on what he
called ‘statutes of a strict and positive, mandatory nature . . .’ . . . Of course, the
rise of the interventionist and welfare state of the twentieth century has profoundly
changed the model of society underlying Savigny’s propositions. The public good
is no longer perceived as exclusively flowing from the unhindered interaction of
private actors, but is very often defined and directly targeted by State legislation.
There are considerable differences between the laws of the various countries, and
many of them are implemented by mandatory private law or even by public law
interventions. Due to the conditions of his time, Savigny turned a blind eye to this
part of the legal order.”
447. See supra, Chap. IV.2.D.
CHAPTER V
UNILATERALIST ENCROACHMENTS
The rejection or unavailability of the substantivist method

relinquishes the PIL field to the selectivist method, which, from the
very beginning, assumed that conflicts of laws should be resolved by
choosing one of the involved states’ laws, rather than blending them.
Of course, the all-important question is how to make that choice. A
key sub-question in this process is whether the choice of law should be
based : (1) on the respective “claims” of each involved state to apply its
law ; or (2) on other, ostensibly neutral, criteria that are indifferent to
these claims. The first option is the basis of unilateralism, whereas the
second is the basis of multilateralism.
A. Misplaced labels
The term unilateralism sounds inherently chauvinistic and arbitrary,

while its historical antipode, multilateralism, sounds conciliatory and
co-operative. Indeed, in international relations, unilateralism is defined
as “the policy or practice of conducting foreign affairs with minimal
consultation or cooperation with other nations” 448, while multilateralism
is “the principle or belief that several nations should be cooperatively
involved in the process of achieving something” 449. The unqualified
transplantation of these two terms into PIL 450 may lead the uninitiated
to conclude that :
448. American Heritage Dictionary of the English Language (5th ed., 2011). See
also International Encyclopedia of the Social Sciences (2nd ed., 2008) (“[A]n approach
toward conducting foreign policy in which a country does not subordinate its aims
or actions to the wishes of other countries or the constraints of international agree-
ments”).
449. Encarta World English Dictionary (N. Am. ed., 2005).
450. See W. Dodge, “Extraterritoriality and Conflict-of-Laws Theory : An Argument
for Judicial Unilateralism”, 39 Harv. Int’l LJ 101, 106 (1998) (attributing unilateralism’s
negative reputation to “a failure to distinguish between judicial unilateralism and
political unilateralism : between unilateralism as a strategy for the nation’s political
branches and unilateralism as an approach that courts might take in the conflict of
laws”).
(1) In a unilateralist approach, the forum state chooses the governing

law based exclusively on the forum’s own notions and preferences,
with complete disregard of those of the other state(s) involved in
the conflict ; and
(2) The multilateralist approach involves making the choice of law in a
co-operative fashion after consulting with, or at least inquiring into,
the wishes of the other involved state(s).
Although these conclusions are intuitive and etymologically justified,
they are largely incorrect – to such an extent that reversing them would
bring each of them closer to the truth. This is hardly surprising because
the label “unilateralism” was chosen not by those who first proposed
the approach – the Italian statutists of the twelfth century – but
rather by their nineteenth-century critics who self-righteously called
themselves “multilateralists”. This mislabelling is largely responsible
for unilateralism’s negative reputation and the prevailing impression
that it is so antithetical to multilateralism that the two methods cannot
co-exist in the same PIL system 451.
This chapter attempts to dispel this impression. It contends
that : (1) unilateralism and multilateralism are not as incompatible
as the misplaced labels make them appear ; (2) unilateralism is
not inherently parochial – although some iterations of it are ; and
(3) properly understood, unilateralism can appropriately complement
multilateralism and can contribute to a rational resolution of some
(though not all) categories of conflicts cases.
B. History
As Chapter I notes, unilateralism preceded multilateralism in history.

The Italian statutists developed the original unilateral method in the
twelfth century, and their French and Dutch successors improved upon
it. This method was based on two premises :
(1) That conflicts of laws should be resolved on the basis of the
involved states’ respective claims to apply their law ; and
(2) That one can ascertain those claims by examining each involved
state’s relevant substantive statutes (statuta) and determining
whether they were intended to reach the case at hand.
451. See, e.g., F. Juenger, “A Third Conflicts Restatement ?”, 75 Ind. LJ 403, 410
(2000) (“[U]nilateralism and multilateralism are antithetical”).
Even by today’s standards, these premises provided a plausible start-

ing point or foundation on which to ground the choice-of-law process.
What was problematic was the way in which the statutists implemented
these premises. For example, in delineating a statute’s intended reach,
the first generation of statutists (being better grammarians than lawyers)
adopted a formalistic mechanical method that relied excessively on the
statute’s wording and produced an artificial classification of statutes
into real, personal, and mixed. It is important to note, however, that
for all its flaws, this classification did not unduly favour the lex fori.
For example, despite misconceptions to the contrary, the statutists did
not oppose the application in foro of a foreign personal statute. As we
examine subsequent iterations of unilateralism, it is equally important
to keep in mind that, although some of them tend to favour the law of
the forum more than multilateralism in general, none of them precludes
the application of foreign law in appropriate cases.
Later statutists, such as Guy de Coquille, replaced grammar with
teleology by basing the classification of statutes on the presumed and
apparent purpose of those who enacted them 452. This was a significant
improvement, but it did not cure the inability of the statutist method
to address the problems created by the inevitable statutory overlaps or
gaps ; namely, (1) cases that fell within the conflicting reach of both
statutes (positive conflicts), and (2) cases that fell outside the reach
either statute (negative conflicts) 453. Unilateralist approaches continue
to struggle with these two categories of cases, which in today’s American
lexicon are called “true” conflicts and “no-interest” cases, respectively.
The statutist method, along with unilateralism in general, was an easy
target for critics. By the nineteenth century, Wächter had discredited the
method, and Savigny delivered the coup de grâce. Savigny’s eloquent
and persuasive critique relegated unilateralism as a doctrine to the
periphery of PIL history for at least another century. Unlike previous
critics, Savigny proposed an alternative method henceforth known as
the multilateral method. Savigny’s analysis begins from the opposite
end to that of the statutists. Rather than focusing on the conflicting laws
452. See G. de Coquille, Questions et responses sur les coutumes de France (1611).
453. See Vischer, “General Course”, at 37-38 (“Inevitably inherent in unilateralism
is the emergence of a negative and positive conflict. If neither the lex fori nor a foreign
legal order claim application, a negative conflict occurs ; it is normally solved by the
residual application of the lex fori. . . . If several foreign legal orders claim application
and the lex fori desists, we face the positive conflict. The unilateralists offer only
general guidelines for the solution of this situation”). See also S. Vrellis, “Introductory
Observations”, para. 92.
and trying to ascertain their intended spatial reach, his method focused
on categories of disputes, or “legal relations”, and then seeks to identify
the state in which each relationship has its “seat” 454. Under Savigny’s
method, that state’s law should govern regardless of its content or that
state’s actual or fictitious wish to apply its law.
C. The differences
On the surface, the two methods appear to differ only with regard
to their starting point, not the final outcome. But there is much more to
this difference. One of its consequences was that :
“By starting with the legal relation, Savigny is able to assert
an argumentative primacy of this relation over the applicable
law. It is not the lawmaker who decides what situations he wants
to cover, it is the situation which determines the appropriate
lawmaker. Starting with the statute and its scope of application
has a political, public overtone ; starting with the legal relation
emphasizes the private, apolitical character of the choice-of-law
process.” 455
Another consequence was that, by “sitting” legal relations on the
map rather than attempting to delineate the spatial reach of laws,
Savigny avoids the difficulties inherent to ascertaining statutory intent,
and eliminates the problem of statutory overlaps (“true conflicts”)
and gaps (“no interest cases”) that had plagued the statutists and later
Currie’s interest analysis 456. Under Savigny’s scheme, each legal
relation “belongs” to the state where, “in its proper nature”, its seat is
located 457. A relation cannot sit or belong to more than one state, nor
can it be an orphan. Thus, Savigny’s analysis can avoid – though not
resolve – true conflicts and no-interest cases 458.
454. Savigny, Treatise, at 27, 89.

455. R. Michaels, “Globalizing Savigny ? The State in Savigny’s Private International
Law and the Challenge of Europeanization and Globalization”, in M. Stolleis and
W. Streeck (eds.), Aktuelle Fragen politischer und rechtlicher Steuerung im Kontext
der Globalisierung 119, 135 (2007).
456. See supra, Chap. IV.2.A, 2.E.2.
458. Michaels, “Globalizing Savigny ?”, at 135-136 (“By looking at the (potential)
scope of application of a statute, it is possible that more than one statute claims
applicability – a true conflict in the jargon of governmental interest analysis. If we start
with the legal relation, such a true conflict is impossible : a legal relation has only one
seat, and this seat determines the applicable law. Conflicts are made impossible”).
The big questions, of course, are who decides the location of each
relation’s seat, and how they do so. These questions were not problematic
for Savigny, because he believed in the existence of “an international
common law of nations . . . under the influence of a common Christian
morality” 459. This jus commune would simply assign a seat to each legal
relation in a particular state based on the inherent qualities, or “proper
nature”, of that relation, rather than on that state’s claim to regulate it.
This is how PIL moved from a content-oriented law selection (imperfect
as it was under the statutists) to a geographical state-selection – what
David Cavers later called “jurisdiction selection” 460.
Perhaps in Savigny’s time it did not seem utopian to believe in a
universal jus commune derived from the consensus of “civilized
nations” 461 or those “under the influence of a common Christian
morality” 462. However, if such law existed at that time, certainly it
ceased to exist by the end of Savigny’s and Story’s century, with the
enactment of PIL codifications and the resulting nationalization of
PIL. Although most of those codifications adopted the multilateral
model, they did not share the same understanding as to where each
legal relation had its seat. This is one of the reasons for which
Savigny’s lofty goal of international decisional harmony could never
materialize.
Section 2. The Resilience of Unilateralism
In any event, with the writings of Savigny and Story in the old
and new worlds, respectively, multilateralism became the dominant
academic method of defining and addressing conflicts of laws. But
unilateralism never disappeared completely. One of the reasons for
this is that, unlike academicians who usually are the initial drafters
of PIL codifications 463, legislators who draft substantive statutes
often delineate their spatial reach in unilateral terms. We shall return

460. See D. Cavers, “A Critique of the Choice-of-Law Problem”, 47 Harv. L. Rev.
173, 178, 191-192 (1933).
461. Savigny, Treatise, at 1 (“It may be said that this branch of jurisprudence (i.e.
PIL) is already the common property of civilised nations”).
463. See Juenger, Multistate Justice, at 179 (“[T]hose who actually draft conflicts
statutes are frequently academicians beholden to one or the other orthodox doctrine”) ;
cf. Basedow, “Open Societies”, 374-375 (“International expert committees are,
thankfully, a poor forum for chauvinism”).
to this point later 464. Savigny acknowledged the existence of these

unilateralist trends when he referred to “[l]aws of a strictly positive,
imperative nature”, which demanded their application in derogation
of his own principle of treating forum law and foreign law equally 465.
He characterized such laws as “anomalous” and believed they would
disappear over time 466. They did not. If anything, these rules have
proliferated. Today they are referred to as “internationally mandatory
rules” or “overriding mandatory rules”, as discussed below.
Section 3. Unilateralism in Academic Doctrine
A. In Europe
Around the middle of the twentieth century, unilateralism reappeared

in European academic literature through the writings of Jean-Paul
Niboyet, Alexander Pilenko, and Rolando Quadri 467, who built upon
the work of earlier European unilateralists such as Alexander Niedner,
Julius Schnell, and Antoine Pillet 468. While it is beyond the scope of
this volume to discuss these writings 469, we should refer to the writings
of another European author, Phocion Francescakis 470, who made some
464. See infra, Chap. V.4 ; Basedow, “Open Societies”, at 476 (criticizing “the
uncurbed inclination of courts and legislatures to unilaterally implement principles of
the forum State”).
465. See supra, Chap. I.5.C.
466. See Savigny, Treatise, at 27.
467. See 2 J.-P. Niboyet, Cours de droit international privé français 349, 443,
478 (1949) ; 3 J.-P. Niboyet, Traité de droit international privé français 243 (1944) ;
A. Pilenko, “Le droit spatial et le droit international privé dans le projet du nouveau
Code civil français”, 6 Rev. hellénique dr. int’l 319 (1953) ; A. Pilenko, “Droit spatial
et droit international privé”, 5 Jus gentium 35 (1954) ; R. Quadri, Lezioni de diritto
internazionale privato (3rd ed., 1961).
468. See A. Niedner, Einführungsgesetz vom 18.8.1896 (Kommentar) (2nd ed.,
1901) ; J. Schnell, “Über die Zuständigkeit zum Erlaß von gesetzlichen Vorschriften
über die raümliche Herrschaft der Rechtsnormen”, 5 Zeitschr. Int’l Priv. & StrafR. 337
(1895) ; A. Pillet, Principes de droit international privé (1903).
469. For excellent discussions of European unilateralism, see S. Francq,
“Unilateralism”, in Basedow et al. (eds.), Encyclopedia of PIL (2017) ; P. Gothot, “Le
renouveau de la tendance unilatérale en droit international privé”, 60 Rev. critique dr.
int’l. priv. 1, 209, 415 (1971) ; P. Mayer, “Les lois de police étrangères”, J. dr. int’l 278
(1981). For an earlier discussion, see R. Wiethölter, Einseitige Kollisionsnormen als
Grundlage des Internationalen Privatrechts (1956).
470. See Ph. Francescakis, La théorie du renvoi et les conflits de systèmes en droit
international privé, 11 et seq. (1958) ; Ph. Francescakis, “Quelques précisions sur les
‘lois d’application immédiate’ et leurs rapports avec les règles de conflits de lois”, 55
Revue critique dr. int’l priv. 1 (1966) ; Ph. Francescakis, “Lois d’application immédiate
et règles de conflit”, 3 Riv. dir. int’le priv. & process. 691 (1967) ; Ph. Francescakis,
prescient observations regarding the presence and operation of unilateral

rules in the real world of legislation and judicial practice. Although he
was not himself a unilateralist, Francescakis observed that, in dealing
with certain kinds of cases with foreign elements, French courts
bypassed the pertinent choice-of-law rule and instead directly applied
certain rules of French substantive law. These rules were referred to as
lois de police et de sûreté (in reference to Article 3 (1) of the French
Civil Code) or as lois d’ordre public. Francescakis renamed both
categories règles d’application immédiate 471. This term more precisely
describes the way these rules operated, while dissociating them from
both the notion of territoriality (with which the term lois de police was
traditionally linked) and the concept of ordre public (which is supposed
to operate defensively rather than offensively).
Indeed, rules of immediate application embody an affirmative public
policy of the enacting state in protecting and promoting important
public interests and values. Reflecting an increasing state intervention
in contemporary society, these rules are found not only in public law
fields that involve economic interests (such as taxation or currency
regulation), but also in areas implicating important social policies
(such as labour law), as well as those which reflect certain moral
beliefs (as does family law). Because of the importance of the interests
these rules embody, they take priority over other rules of substantive
law, and, a fortiori, over any otherwise applicable foreign law. Thus,
whenever a case with foreign elements falls within the ambit of a rule
of immediate application, the rule applies directly (immédiatement) –
that is, without considering whether such rule is applicable through
a choice-of-law rule. In such a case, there is no question of applying
foreign law and, therefore, no need to consider choice-of-law rules.
The interests reflected in rules of immediate application are simply too
important to jeopardize by subjecting them to the ordinary choice-of-
law process, which may point to the application of foreign law. Rules
of immediate application deserve a privileged status, both domestically
and internationally, because they preserve the very identity of the state
“Conflits de Lois (principes généraux)”, in Répertoire de droit international 470, 480

(Vol. 1, No. 128) (1968).
471. See also R. de Nova, “Conflict of Laws and Functionally Restricted
Substantive Rules”, 54 Calif. L. Rev. 1569 (1966) ; P. Graulich, “Règles de conflit et
règles d’application immédiate”, 2 Mélanges Dabin 629 (1963) ; G. Sperduti, “Norme
di applicazione necessaria e ordine publico”, 12 Riv. dir. int’le priv. & process. 769
(1976).
– an identity which international law does not deny but takes as its
premise.
The unilateralist tenet of this thought is apparent 472, as are its political
connotations. As Celia Fassberg notes, the theory of rules of immediate
application “developed a political foundation for identifying situations
in which it might be justified to abandon multilateral choice rules and
require application of forum law alone” 473. However, this unilateralism
is only partial, for two reasons. First, unlike the unilateralism of the
statutists, this form of unilateralism is confined to a particular class of
substantive rules – those of police et de sûreté and those of an ordre
public character ; and, at least as originally conceived, extends only to
the law of the forum. Second, it does not reject the value of a bilateral
system, to which it resorts in two categories of cases, namely : (1) those
cases falling outside the ambit of any forum rule of immediate
application, and (2) the “remaining part” of cases that fall only partially
within the ambit of such a rule.
Francescakis did not discuss a question that later acquired impor-
tance ; namely, whether the forum should ever apply a rule of immediate
application not belonging to either the lex fori or the lex causae 474 but
rather to a third state. For a unilateralist the answer is simple, because
a unilateralist considers the laws of all potentially implicated states
whenever forum law is inapplicable. To a bilateralist, who looks at
only two laws, the lex fori and the lex causae (and tends to despise
dépeçage), this very question is almost inconceivable.
Surprisingly, however, the first writer to answer this question
in the affirmative was a multilateralist jurist, Wilhelm Wengler, as
early as 1941. In discussing contract conflicts, Wengler proposed his
theory of “special connections” (Sonderanknüpfungen) 475. According
to this theory, when a foreign imperative rule that is not part of the
lex contractus claims application to a contract, the court should
472. As Spyros Vrellis notes, “The theory of rules of immediate application is rooted
in the statutist theory and derives its intellectual nourishment from the concept and
demands of public policy.” Vrellis, “Introductory Observations”, para. 45.
and Out with a Whimper”, 163 U. Pa. L. Rev. 1919, at 1936 (2015).
474. A rule of immediate application originating from the state whose law applies
to a case (lex causa) is always applicable as part of the lex causae ; unless, of course,
application of that rule is prevented by a contrary rule of immediate application of the
lex fori, or offends the forum’s ordre public.
475. See W. Wengler, “Die Anknknüpfüng des zwingended Schuldrechts im
IPR : Eine Rechtsvergleichende Studie”, 54 ZvglRW 168, 194-195 (1941). See also
K. Zweigert, “Nichterfüllung auf Grund ausländischer Leistungsverbote”, 14 RabelsZ
283, 303-04 (1942).
consider such application if the enacting state has a “sufficiently close

connection” with the contract, such as when that state is physically in a
position to impose its policies. Many years later, Wengler’s idea found
its way into what became Article 7 of the Rome Convention, which is
discussed later in this volume, along with other overriding mandatory
rules 476.
B. In the United States
In the United States, the most outspoken proponent of unilateralism

was Brainerd Currie (1913-1965) 477. Although Currie was probably
unaware of other versions of unilateralism 478, his theory of conflicts
resolution, in many of its central premises, is remarkably similar to the
statutist method 479. Currie postulates that, to properly resolve a conflict
of laws, one should first ascertain whether each of the involved states
would wish to apply its law. To this end, one should examine the content
of the conflicting laws, and seek to determine whether their underlying
purposes or policies would be best effectuated by that law’s application
to the particular case – whether, in other words, the involved states
have an interest in applying their law. This inquiry may lead to three
possibilities, which in turn correspond to the three well-known (if not
well-accepted) categories of conflicts :
(1) Cases in which only one of the involved states is interested in
applying its law (the “false conflict” pattern) ;
(2) Cases in which two or more states have such an interest (the “true
conflict” pattern) ; or
(3) Cases in which none of the involved states are interested (the “no-
interest” pattern or “unprovided-for case”) 480.

477. Currie enunciated his approach in a series of law review articles published
during the 1950s and early 1960s. These articles are collected in B. Currie, Selected
Essays on the Conflict of Laws (1963) (hereinafter Currie, Selected Essays). For a full
discussion of Currie’s approach, see Symeonides, Oxford Commentaries 97-105.
478. See S. Symeonides, An Outsider’s View of the American Approach to Choice
of Law : Comparative Observations on Current American and Continental Conflicts
Doctrine 16-38 (1980).
479. See J. Dolinger, “Evolution of Principles for Resolving Conflicts in the Field
of Contracts and Torts”, 283 Recueil des cours 189, 306 (2000) (referring to Currie’s
approach as “the ultimate materialization of the unilateralist approach”).
480. In his later work, Currie recognizes a fourth category – what he calls an
“apparent conflict”, which is something between a false and a true conflict. In his
words, an apparent conflict arises when “each state would be constitutionally justified
in asserting an interest, but on reflection the conflict is avoided by a moderate definition
In false conflicts, Currie would apply the law of the only interested
state, which can be either the forum state or another state. This part
of Currie’s analysis is neither controversial nor controvertible, at
least for those who subscribe to the view that a proper starting point
for resolving conflicts of laws is consideration of state interests. In
contrast to the traditional theory – which, by failing to inquire into state
interests, had the propensity to randomly sacrifice the interests of one
state without promoting those of another state – Currie’s solution to
an admittedly false conflict can effectuate the policies of an interested
state without sacrificing any policies of an uninterested state. In this
sense, the concept of a false conflict was an important breakthrough in
American choice-of-law thinking and has become an integral part of all
modern policy-based analyses.
However, Currie’s solutions to the other categories of conflicts are
questionable. In true conflicts, Currie would apply the law of the forum,
reasoning that a court may not subordinate the forum’s interests to those
of another state 481. Indeed, this very possibility impelled Currie to insist
that judges should not even attempt to weigh the interests of the two
states. His explanation is that judges have neither the constitutional power
nor the requisite resources to weigh conflicting governmental interests
and should not be put in the position of potentially subordinating the
forum’s interests. Currie thought that interest-weighing is a “political
function of a very high order . . . that should not be committed to courts
in a democracy” 482.
Finally, Currie would apply the law of the forum to his third
conflicts category – the “unprovided-for” or “no-interest” cases – even
though in such cases the forum is, ex hypothesi, disinterested. Currie’s
explanation for applying forum law was that “no good purpose will be
served by putting the parties to the expense and the court to the trouble
of ascertaining the foreign law” 483. This is a practical explanation.
Unfortunately, it overlooks the problem grammarians call prothysteron :
of the policy or interest of one state or the other”, or “a case in which reasonable men
may disagree on whether a conflicting interest should be asserted”. B. Currie, “The
Disinterested Third State”, 28 Law & Contemp. Probs. 754, 763 (1963).
481. See B. Currie, “Comments on Babcock v. Jackson – A Recent Development
in Conflict of Laws”, 63 Colum. L. Rev. 1233, 1237-1238 (1963) (“In the absence of
action by higher authority, each state must be conceded the right to apply its own laws
for the reasonable effectuation of its own policies”) (emphasis added).
482. Currie, Selected Essays, at 182. Later in the text, Currie speaks of the
“embarrassment of [a court] having to nullify the interests of its own sovereign”. Ibid.,
at 278-279, 357. For a critique, see Symeonides, Oxford Commentaries 101-102.
483. Currie, Selected Essays, at 152-156.
that one cannot know whether the case is a no-interest case without
first knowing whether the foreign state is uninterested ; and one cannot
know whether that state is uninterested without first ascertaining the
content of its law and identifying its underlying policies.
In sum, under Currie’s analysis, almost all roads lead to the lex
fori. Currie would apply foreign law in only two situations, both of
which are rather infrequent : (1) false conflicts in which the forum is
an uninterested state ; and (2) apparent conflicts in which the judge
chooses to subject to a “restrained interpretation” the law of the forum
state rather than the foreign state.
Currie’s lex fori partiality reinforced the impression that unilateralism
by nature is parochial, or even chauvinistic. However, as discussed
later, parochialism is not an inherent characteristic of unilateralism. In
fact, the two American jurisdictions that presently continue to follow
Currie’s approach (California and the District of Columbia) have
rejected Currie’s lex fori favoritism and his proscription of interest-
weighing 484.
In recent years, Currie’s direct influence on judicial decisions and
academic methodologies has declined significantly 485. Nevertheless,
most other modern American choice-of-law approaches have adopted
two Currie-like premises and, to this extent, have incorporated
unilateralist elements. These premises are : (1) that states have an
“interest” in the outcome of multistate private-law disputes ; and
(2) that these interests must be taken into account, albeit together
with other factors, in resolving these conflicts.
Despite differences in nomenclature, most modern American
academic and judicial approaches recognize the concept of state
interests as an important choice-of-law factor. To this extent, most of
these approaches are at least partly unilateral 486. For some authors,
this proves that Currie “won the war” even if he “may have lost the
battle” 487. Whether or not this contention is accurate, important

485. See ibid., at 163-164.
486. As Arthur von Mehren concedes, while
“[m]any jurists who accept a functional and teleological approach to choice of law
criticize the extreme unilateral-parochial form advocated by Currie . . . [f]ew would
deny . . . the existence of a strong unilateral tendency in the contemporary theory
and practice of choice of law in the United States”. A. von Mehren, “American
Conflicts Law at the Dawn of the Century”, 37 Willamette L. Rev. 133, 139 (2000).
487. H. Kay, “Currie’s Interest Analysis in the Twenty First Century : Losing the
Battle but Winning the War”, 37 Willamette L. Rev. 123, 126 (2000). Kay’s comment
elements of unilateralism are present in virtually all contemporary

American choice-of-law approaches.
This is particularly true of the most popular of these approaches,
the Restatement (Second), which is followed in a plurality of states 488.
The Restatement has all the appearances of a multilateral approach,
including a Savignian-sounding exhortation to apply the law of the state
that has the “most significant relationship”. However, an essential tool
in the process of identifying that state is unilateralist, because the court
must consider “the relevant policies of the forum . . . [and] of other
interested states . . . in the determination of the particular issue” 489.
The same combination of multilateral and unilateral elements
appears in other modern policy-oriented approaches. Before Currie, for
example, Walter Cook and David Cavers argued that the choice-of-law
process should consider the socioeconomic purposes underlying the
competing substantive laws 490. Russell Weintraub, Arthur von Mehren,
and Donald Trautman also regarded state interests as relevant to the
choice-of-law process, although – unlike Currie – they advocated
weighing those interests against each other 491. Even Robert Leflar’s
better-law approach contains a unilateralist element, insofar as one of
its “choice-influencing considerations” is the “[a]dvancement of the
forum’s governmental interests” 492. Finally, “evaluating the strength
and pertinence of the relevant policies of all involved states” and
applying the law of “the state whose policies would be most seriously
impaired if its law were not applied” 493 is the operating principle of
the Louisiana codification. In essence, as a knowledgable observer
succinctly concluded, “The prevailing methodology in the United
addresses Currie’s war against the jurisdiction-selecting aspect of the traditional

American approach, an issue on which Kay is correct, even though Cavers had started
that war long before Currie. The comment can also apply to Currie’s undeclared war
against multilateralism.
489. Restatement (Second), §§ 6 (2) (b), 6 (2) (c).
490. See Symeonides, Oxford Commentaries 94-96. Another unilateralist, albeit one
with less influence than Currie, was Albert Ehrenzweig. For his voluminous work, see,
inter alia, A. Ehrenzweig, A Treatise on the Conflict of Laws (1962) ; A. Ehrenzweig,
Private International Law (Vol. I) (1967) ; A. Ehrenzweig, “Specific Principles of
Private Transnational Law”, 125 Recueil des cours 170 (1969) ; A. Ehrenzweig, “A
Proper Law in a Proper Forum : A ‘Restatement’ of the ‘Lex Fori Approach’ ”, 18 Okla.
L. Rev. 340 (1965).
491. See Symeonides, Oxford Commentaries 108-110. Likewise, Baxter’s compa-
rative impairment advocates weighing of impairments of state interests. See W. Baxter,
“Choice of Law and the Federal System”, 16 Stan. L. Rev. 1 (1963).
492. See infra, Chap. VI.3.B.2.a.
493. See La. Civ. Code, Ats. 3515, 3519, 3537, 3542.
States, emerging from the conflicts revolution . . . is a curious amalgam

of the unilateral and multilateral methods.” 494
Section 4. Not “Only in America” : The Ubiquity of Unilateralism

One of the many differences between Currie’s unilateralism and
that advocated by other writers is that Currie views unilateralism as
the exclusive method for resolving conflicts, whereas others view it
as complementary to multilateralism. Another difference between
the unilateralism of American authors, including Currie, and that of
European writers is that the American version gained judicial following.
Nevertheless, unilateralism has survived or resurfaced in the rest of the
world, both in PIL codifications and substantive statutes. This section
documents this development.
A. Unilateral choice-of-law rules in PIL codifications
1. Old-fashioned, general unilateral rules
The PIL codifications of the nineteenth century, including those of

France (1804), Chile (1855), Greece (1856), Italy (1865), and Spain
(1889) 495, consisted primarily of a handful of unilateral rules. For
example, Article 3 of the French Civil Code provided that : (1) French
“laws of police and safety are binding on all those inhabiting the
[French] territory” ; (2) “Immovables [situated in France] are governed
by French law, even when owned by aliens” ; and (3) French “[l]aws
concerning the status and capacity of persons govern French persons,
even those residing in a foreign country” 496. In spite of Savigny and
because of Bismarck 497, the German codification (the EGBGB) of
494. C. Peterson, “American Private International Law at the End of the 20th Cen-
tury : Progress or Regress ?”, in S. Symeonides (ed.), Progress or Regress ? 413, 430
(1999).
495. See Spanish Civil Code of 1889, Art. 8 ; Puerto Rico Civil Code of 1890,
Art. 9 ; Civil Code of the Philippines, Arts. 14, 16.
496. Code civil, Art. 3 :
“Les lois de police et de sûreté obligent tous ceux qui habitent le territoire.
Les immeubles, même ceux possédés par des étrangers, sont régis par la loi
française.
Les lois concernant l’état et la capacité des personnes régissent les Français,
même résidant en pays étranger.”
497. See J. von Hein, “Germany”, in J. Basedow et al. (eds.), Encyclopedia of PIL
(2017) (“Due to political pressure from the Chancellor and the foreign office, however,
the fairly modern, multilateral rules contained in the first draft of the EGBGB had
1900, the last codification of that century, also consisted primarily of

unilateral rules 498.
However, Savigny’s advocacy of multilateralism proved more
influential in the long term, beginning with the turn of the century.
Most codifications enacted in the twentieth century, especially during
its second half, followed the multilateral model 499. Nevertheless, most
new codifications make selective use of unilateral rules. A survey of
these rules in the codifications of the last 50 years demonstrates that
unilateral rules have become the tool of choice for protecting important
national interests or values.
As Frank Vischer notes,
“Unilateralism as a system has both an internal and external
side. The ‘internal’ side consists in the determination of the scope
of application of the substantive rules of the lex fori, the ‘external’
side deals with the reach of foreign rules.” 500
Thus, unilateral rules appear in two forms : inward-looking, and
outward-looking. Inward-looking rules subject certain multistate cases
that have specified forum contacts to the law of the forum (thereby
excluding the application of foreign law) without also authorizing the
application of foreign law to analogous cases lacking the specified
forum contacts. Article 3 of the French Civil Code, quoted above, is a
typical example of an inward-looking unilateral rule.
largely been replaced by unilateral rules defining only the spatial reach of German
law. German courts reacted to this mutilation by interpreting the conflicts rules in a
multilateral way all the same”) ; E. Jayme, “Identité culturelle et intégration : Le droit
international privé postmoderne”, 251 Recueil des cours 9, 92 (1995).
498. However, “the unilateral conflict rules of the old EGBGB were formed on the
model of bilateralism, departing from legal relationships and not from the substantive
rules and their ambit”. F. Vischer, “General Course”, 38.
499. The few exceptions are concentrated in Africa, where former French and
Belgian colonies followed the unilateral model of the Code civil. For example, Article 9
of the codification of Guinea-Conakry provides that : (1) “The laws of police and
security are binding on all those found in the national territory” ; (2) Guinean law
governs immovables located there, including those possessed by foreigners ; and
(3) Guinean laws regarding status and capacity apply to Guineans, even when they
reside abroad. Guinea-Conakry codif., Art. 9 (Loi No. 51-62 du 14 avril 1962 relative à
la théorie générale de la loi (promulguée, D. No. 197, 4 janv. 1962, J. off. Rep. Guinée,
1er juill. 1962). Similar rules are found in the codifications of the Central African
Republic (Art. 39), Congo-Brazzaville (Art. 820), Gabon (Arts. 40, 43), Madagascar
(Art. 27), Mauritania (Art. 9), Rwanda (Arts. 7, 10), Senegal (Art. 841), and Togo
(Art. 708). However, in some of these codifications, these rules are surrounded and
outnumbered by bilateral rules.
500. F. Vischer, “General Course”, 37.
Outward-looking rules do the reverse – they subject certain multistate

cases possessing specified contacts with a foreign state to the law of
that state. For example, Article 91.1 of the Swiss codification provides
that the succession of a person who had his last domicile outside
Switzerland is governed by the law designated by the conflicts rules of
the state of her last domicile. Such rules are relatively rare and, most
often, are paired with inward-looking rules, thus producing the same
effect as a bilateral rule 501. For example, the Article 91.1 is paired with
Article 90.1, which provides that the succession of a person who had
his last domicile in Switzerland is governed by Swiss law.
2. Unilateral rules for tort conflicts

Virtually all modern codifications regulate tort conflicts through
bilateral rules 502. Nevertheless, several codifications contain inward-
looking unilateral rules, which are phrased as exceptions to the bilateral
rules. The adoption of an inward-looking unilateral rule clearly signals
that at stake are important public interests, which the codification’s
drafters seek to insulate from the application of foreign law.
The Quebec codification provides a very clear example of this
phenomenon. Its bilateral choice-of-law rules for torts (Art. 3126) and
products liability (Art. 3128) generally favour plaintiffs by, inter alia,
giving them a choice between the laws of the place of conduct and
the place of injury in cross-border torts, and between the laws of the
manufacturer’s home state and the state of the product’s acquisition
in products liability cases. However, Articles 3151 and 3129 single
out cases involving an injury caused by raw materials originating in
Quebec. Article 3151 subjects these cases to the exclusive jurisdiction
of Quebec authorities, while Article 3129 “imperative[ly]” subjects
these cases to Quebec law. Article 3129 provides that the application
of the Quebec Civil Code “is imperative in matters of civil liability
for damage suffered in or outside Québec as a result of exposure to
or the use of raw materials, whether processed or not, originating in
Québec” 503.

502. For instance, some (but not all) of the African codifications that contain a
unilateral rule requiring the application of the forum’s laws of “police and security” (see
supra footnote 499) also contain a bilateral lex loci delicti rule for tort conflicts. See,
e.g., Central African Republic codif., Art. 42 (2) ; Gabon codif., Art. 41 ; Madagascar
codif., Art. 30.2 ; Mauritania codif., Art. 11.
503. Quebec codif., Art. 3129. For a critique of this article and Article 3151, see
H. P. Glenn, “La guerre de l’amiante”, 80 Rev. critique dr. int’l priv. 41, 59 (1991).
Another example is provided by the so-called “double-actionability

rules” in states that otherwise adhere to multilateralism. These rules
provide that in order for a tort victim to recover, the tortfeasor’s
conduct must have been actionable under both : (a) the foreign law
ordinarily applicable to the tort ; and (b) the law of the forum qua
forum. In addition to the United Kingdom, which continues to follow
this rule in defamation cases only 504, states utilizing such rules include :
Afghanistan, Algeria, Belarus, Japan, Jordan, Kazakhstan, North Korea,
Kyrgyzstan, Qatar, Somalia, Sudan, Tajikistan, Ukraine, the United
Arab Emirates, and Uzbekistan 505. By superimposing the law of the
forum on a tort that is otherwise governed by foreign law, these rules
protect forum domiciliaries, who are always subject to jurisdiction in
the forum state and are more likely to be sued there.
Article 551 of the Mongolian codification more directly protects
domestic defendants. That article provides that torts are governed by
the law of the state of injury, but Mongolian law governs if the injury
occurred outside Mongolia and the tortfeasor is a Mongolian natural or
legal person 506.
Rules limiting the amount or type of available damages to comport
with the standards of the lex fori are yet another example of inward-
looking unilateral rules designed to protect primarily domestic
defendants. These rules provide that, when foreign law governs a tort
action, the amount or type of damages to be awarded may not differ, at
least not significantly, from the recovery available under the lex fori. At
least five codifications contain such rules.
For example, the Swiss codification provides that, in products
liability and obstruction to competition cases governed by foreign law,
“no damages may be awarded in Switzerland beyond those that would
be awarded . . . under Swiss law” 507. The Turkish codification has a
similar rule regarding the amount of damages in cases of obstruction
504. See L. Collins, Dicey, Morris & Collins on the Conflict of Laws 2252-2254,
2259-2260 (15th ed., 2012).
505. See Afghanistan codif., Art. 29.2 ; Algerian codif., Art. 20 (2) ; Belarus codif.,
Art. 1129 (3) ; Japanese codif., Art. 22 ; Jordanian codif., Art. 22 (2) ; Kazakhstan codif.,
Art. 1117.3 ; North Korean codif., Art. 31 (2) ; Kyrgyzstan codif., Art. 1203 (3) ; Qatar
codif., Art. 30 (2) ; Somali codif., Art. 21.2 ; Sudanese codif., Art. 11 (14) (b) ; Tajikistan
codif., Art. 1225.3 ; UAE codif., Art. 20 (2) ; Ukrainian codif., Art. 49.3 ; Uzbekistan
codif., Art. 1194.4. Hungary follows the double-actionability rule for torts committed
prior to its adoption of Rome II. See Hungarian codif., Art. 34.1.
506. Mongolian codif., Art. 551.
507. Swiss codif., Arts. 135 (2), 137 (2). The French text of these articles uses the
words “other than” in lieu of the word “beyond”, as used in the German text quoted
above. Thus, the French text may be interpreted to preclude both higher damages than
to competition 508. The Estonian codification provides that the amount

of damages in such cases shall not be “significantly greater” than the
amount allowed under Estonian law 509.
The German and South Korean damages-limiting rules are slightly
subtler. The German rule provides that claims governed by foreign law
“cannot be raised insofar as they (1) go substantially beyond
what is necessary for an adequate compensation of the injured
party, [or] (2) obviously serve purposes other than an adequate
compensation of the injured party” 510.
The South Korean rule provides that damages for a tort governed by
foreign law
“shall not be awarded if the nature of the damages is clearly
not appropriate to merit compensation to the injured party or
if the extent of the damages substantially exceeds appropriate
compensation to the injured party” 511.
From a methodological perspective, the German and South Korean
provisions differ in some respects from the Swiss provisions and those
of the other states described above. Strictly speaking, the German
and South Korean provisions are not unilateral rules (or choice-of-
law rules, for that matter) because they do not mandate the automatic
application of forum law to the exclusion of foreign law. Rather, they
are substantivist provisions authorizing the judge to scrutinize foreign
law through the lens of the forum’s substantive law and reject claims
considered excessive or punitive under forum law. In this sense, these
provisions may be characterized as specialized ordre public exceptions
clauses 512. At the same time, however, these provisions dramatically
lower the threshold for interjecting the forum’s public policy into a case
and are likely to produce the same pro-forum results as the above Swiss
provision.
those allowed by Swiss law and types of damages that are unavailable under Swiss law,
such as punitive damages.
508. Turkish codif., Art. 38 (2).
509. Estonian codif., Art. 52.
510. German codif., Art. 40 (3).
511. South Korean codif., Art. 32 (4).
512. A draft of what later became Rome II specifically provided that the application
of a foreign law imposing exemplary or punitive damages was contrary to Community
public policy. This provision was omitted from the final text on the assumption that
the generic ordre public reservation would likely produce the same result in most
situations, without mandating it in all cases.
Finally, a rather unusual unilateral rule appears in some of the recent

codifications that have adopted the common-domicile exception to the
lex loci delicti rule for situations in which tortfeasor and the victim are
domiciled in one state and are involved in a tort occurring in another
state 513. In 33 of these codifications, this exception bilaterally applies
to both foreign and domestic torts and authorizes the application of
either foreign or domestic law, depending on the location of the parties’
common domicile. However, nine codifications (Azerbaijan, Belarus,
Dominican Republic, Kazakhstan, Kyrgyzstan, Tajikistan, Ukraine,
Uzbekistan, and Vietnam) 514 have phrased their exception in unilateral
terms that limit its application to foreign torts, but not torts occurring
within those states. The combined operation of this exception with the
lex loci rule ensures a much wider range for the law of the forum than
foreign law. It means, for example, that a Ukrainian court will apply
foreign law to a foreign tort involving foreign co-domiciliaries, but
will apply Ukrainian law to both a foreign tort involving Ukrainian co-
domiciliaries and a Ukrainian tort involving foreign co-domiciliaries.
The corresponding Vietnamese rule is more direct and narrow. It provides
that if the tortfeasor and the victim are both Vietnamese nationals, but
the tort occurs abroad, Vietnamese law governs in derogation from the
lex loci delicti rule, which applies in all other circumstances 515.
3. Multiple nationalities
Many choice-of-law codifications continue to use nationality or

citizenship as a connecting factor for choice-of-law purposes. When a
person has more than one nationality, these codifications encounter a
“conflict of nationalities”, from which the controlling nationality must
be chosen. Such a choice is necessary for determining, inter alia, which
law governs : (1) a person’s status (e.g., general legal capacity, right to
a name, or filiation) ; (2) a person’s capacity to act (e.g., to enter into a
contract) ; and (3) a person’s relationship with another person when the
513. See Symeonides, Codifying Choice of Law, at 72-80.

514. See Azerbaijan codif., Art. 26.2 ; Belarus codif., Art. 1129.2 ; Dominican Rep.
codif., Art 69.II ; Kazakhstan codif., Art. 1117.2 ; Kyrgyzstan codif., Art. 1203.2 ;
Tajikistan codif., Art. 1225.2 ; Ukraine codif., Art. 49.2 ; Uzbekistan codif., Art. 1194.2 ;
Vietnamese codif., Art. 773.3. A previous version of Article 1219.2 of the Russian
codification contained the same rule. See Symeonides, Codifying Choice of Law 78-89.
515. See Vietnamese codif., Art. 773.3. Article 69.II of the Dominican Republic’s
codification is substantially the same, except that it uses common habitual residence,
rather than nationality, as the connecting factor.
applicable law depends on whether they share a “common nationality”,

as in the case of marriage, divorce, or personal or property relations
between spouses.
Most codifications differentiate between cases in which one of the
nationalities is that of the forum, and those in which it is not. In the
latter cases, most codifications choose the controlling or “effective”
nationality through a bilateral rule, usually based on the “closest
connection” or a similar concept 516. In the former cases, when one of
the nationalities is that of the forum state, most codifications employ
a unilateral rule providing that the effective nationality is that of the
forum. For example, the Algerian codification provides that, in cases
of multiple nationalities, the court applies the law of the effective
nationality, but if one of the nationalities is Algerian, that nationality
prevails 517. At least 25 other codifications contain similar rules 518. The
Dutch codification adopts the same solution with regard to a person’s
name 519.
4. Capacity
Many choice-of-law codifications distinguish between general civil
capacity (i.e., the capacity to have rights and duties, also known as
“personality”), and the capacity to enter into contracts and other juridical
acts. Regarding the former type, personality, the most common choice-
of-law rule is bilateral, applying the “personal law” of the individual
whose capacity is at issue 520. However, some codifications, such as
the Swiss, have adopted a unilateral rule mandating the application of
the lex fori for both forum and non-forum domiciliaries 521. This rule is
516. See Symeonides, Codifying Choice of Law, at 185-186.

517. Algerian codif., Art. 22.
518. See Albanian codif., Art. 8 ; Austrian codif., Art. 9 (1) ; Belarus codif.,
Art. 1103 (1) ; Belgian codif., Art. 3 (2) ; Bulgarian codif., Art. 48 (2) ; Congolese codif.,
Art. 827 ; Croatian codif., Art. 11 (1) ; Czech codif., Art. 28.1 ; FYROM codif., Art. 11 (1) ;
Hungarian codif., Art. 11 (2) ; Italian codif., Art. 19 (2) ; Japanese codif., Art. 38 (1) ;
Jordanian codif., Arts. 15, 26 ; North Korean codif., Art. 7 (1) ; South Korean codif.,
Art. 3 (1) ; Liechtenstein codif., Art. 10 (1) ; Montenegrin codif., Art. 11.2 ; Qatar codif.,
Arts. 13, 35 ; Russian codif., Art. 1195 (2) ; Senegal codif., Arts. 843.4, 849 ; Serbian
draft codif., Art. 7.1 ; Slovak codif., Art. 33.1 ; Slovenian codif., Art. 10.1 ; Somalian
codif., Art. 25.2 ; Swiss codif., Art. 23 (1) ; Togo codif., Art. 727 ; Tunisian codif.,
Art. 39 ; UAE codif., Arts. 14, 24 ; Yemen codif., Art. 35. For a provision following the
same solution in cases of multiple residences, see Macau codif., Art. 35.4.
519. See Dutch codif., Art. 25.
520. In defining the personal law, different codifications use different connecting
factors, such as nationality, domicile, or habitual residence.
521. See Swiss codif., Art. 34 (1) (“The capacity to be the subject of rights and
obligations is governed by Swiss law”).
benevolent rather than xenophobic, intended to accord foreigners the

same rights as Swiss citizens, rather than deprive foreigners of rights
they possess in their home states. Other codifications express this idea
more directly by providing that foreigners enjoy the same rights within
the forum state as the citizens of that state, subject to some exceptions 522.
Regarding a person’s capacity to enter into juridical acts, most
codifications employ a bilateral rule, calling for the application
of the “personal law” of the party whose capacity is at issue. A few
codifications provide an exception that is also phrased as a bilateral
rule authorizing the application of the law of the state in which all
contracting parties acted 523
. However, several other codifications
provide an exception phrased as a unilateral rule, in favour of the forum
state. This rule generally provides that if a person who lacks capacity
under her personal law enters into a juridical act in the forum state for
which she would have capacity under the lex fori, that person will be
deemed to have capacity. Unilateral rules to this effect are found in
nearly 30 codifications 524. All of these rules apply the law of the forum
only when it validates the juridical act 525, and most do not apply to
juridical acts relating to family law or successions. These limitations
suggest that the real purpose of these rules is to promote the security of
transactions in the forum state, rather than to favour foreigners.
522. See, e.g., Burundi codif., Art. 1 ; Congo-Brazzaville codif., Art. 819 ; Gabonese
codif., Art. 25 ; Kazakhstan codif., Art. 1095.1 ; Lithuanian codif., Art. 1.15 ; Mongolian
codif., Art. 543 ; Russian codif., Art. 1196 ; Senegalese codif., Art. 840 ; Togo codif.,
Art. 707 ; Vietnamese codif., Art. 761 (1).
523. See, e.g., Rome I, Art. 13 ; Rome Convention, Art. 11 ; Armenian codif.,
Art. 1265 ; Bulgarian codif., Art. 50 (2) ; Burkina Faso codif., Art. 1018 ; Chinese codif.,
Art. 12 ; Croatian codif., Art. 14 ; Estonian codif., Art. 12 (3) ; FYROM codif., Art. 15 ;
German codif., Art. 12 ; Italian codif., Art. 23 (2) (3) ; Japanese codif., Art. 4 ; South
Korean codif., Arts. 13, 15 (1) ; Moldovan codif., Art. 1592.2 ; Liechtenstein codif.,
Art. 12 ; Oregon contracts codif., §15.330 ; Polish codif., Arts. 11, 12 ; Puerto Rico
draft codif., Art. 33 ; Quebec codif., Art. 3086 ; Romanian codif., Art. 17 ; Russian
codif., Art. 1197 ; Swiss codif., Art. 36 ; Tunisian codif., Art. 40 ; Slovenian codif.,
Art. 13 ; Turkish codif., Art. 9 (2) ; Ukrainian codif., Art. 18. These articles provide that
a person who is considered capable of contracting under the law of the place of the
contract’s making may invoke his incapacity under another law only if the other party
knew or should have known of the incapacity at the time of the contract.
524. See the codifications of : Algeria (Art. 10) ; Angola (Art. 28.1) ; Cape Verde
(Art. 28.1) ; Guinea-Bissau (Art. 28.1) ; Hungary (Art. 15.2-3) ; Israel (Law 5722/1962,
§ 77) ; Jordan (Art. 12) ; North Korea (Art. 18) ; Latvia (Art. 8) ; Lithuania (Art. 1.17) ;
Macau (Art. 27) ; Mauritania (Art. 7) ; Mozambique (Art. 28.1) ; Peru (Art. 2070) ;
Portugal (Art. 28.1) ; Qatar (Art. 11) ; Slovakia (Art. 3.2) ; Somalia (Art. 11) ; Sudan
(Art. 11.1) ; Spain (Art. 10 (8) ) ; Taiwan (Art. 10.3) ; UAE (Art. 11.1) ; Yemen (Art. 25).
525. For exceptions, see the corresponding rules of Belarus (Art. 1104.3) and
Vietnam (Art. 762.2), which apply the law of the forum to the capacity of foreigners
acting within in the forum state, even when that law does not validate the juridical act.
5. Marriage
Most modern choice-of-law codifications have adopted a bilateral

rule providing that the substantive requirements for a valid marriage
are governed, with regard to each prospective spouse, by the personal
law of that spouse. However, in many codifications, this rule is subject
to exceptions phrased as unilateral rules in favour of the lex fori. The
lex fori exceptions are designed to guard against foreign laws that may
be either too restrictive, or not restrictive enough, regarding the right
to marry.
The codifications of Albania, Austria, Belgium, Bulgaria, Estonia,
Germany, and Romania are among those employing unilateral rules
to defend against restrictive foreign laws. For example, the German
codification begins by requiring compliance with the national law
of each prospective spouse, but if neither law allows the marriage,
German law applies if one spouse is a resident or citizen of Germany
and the foreign law is “incompatible with freedom of marriage” 526.
The Bulgarian codification also requires compliance with the national
law of each prospective spouse, but provides that if one of those laws
imposes a marriage impediment that is “incompatible with the freedom
to marry” under Bulgarian law, and one of the prospective spouses is a
Bulgarian national or resident, the impediment “shall be disregarded” 527.
The Romanian and Albanian codifications contain a similar unilateral
rule 528. The Austrian codification provides that, if a foreign judgment
recognizable in Austria dissolves or annuls a marriage, a new marriage
may not be prohibited solely because the personal law of one or both
526. German codif., Art. 13. This article also provides that the prospective spouses
must have taken reasonable steps to comply with their national law. The article also
gives examples of foreign laws that violate the principle of freedom to marry. It
provides that
“a marriage shall not be prevented by a previous marriage of either engaged
person, if the validity of the previous marriage has been set aside by a decision
made or recognized within the country, or, if the spouse of either engaged person
has been declared dead”.
527. See Bulgarian codif., Art. 76 (2).
528. See Romanian codif., Art. 2586.2 (providing that if a foreign law imposes an
impediment to the marriage that is incompatible with the right to marry under Romanian
law, the impediment may not prevent a marriage in Romania if one of the prospective
spouses is a Romanian citizen) ; Albanian codif., Art. 21 (providing that, if according
to the national law of each of the prospective spouses, one or more of the substantive
requirements of marriage are lacking, Albanian law governs if one of the spouse is an
Albanian national or habitual resident).
of the spouses does not recognize the judgment 529. The Estonian and
Liechtenstein codifications contain comparable provisions as well 530.
Recently, several codifications have adopted similar solutions for
same-sex marriages and unions. The Belgian codification provides that
the national laws of each prospective spouse govern the substantive
requirements of marriage, but if one of those laws prohibits same-sex
marriage, that law does not apply if either spouse (1) is a national of a
state that would allow the marriage, or (2) maintains his or her habitual
residence in such a state 531. The Dutch codification provides that Dutch
law governs the capacity of each of the partners to enter into a registered
partnership in the Netherlands, even in the absence of any other Dutch
connections 532.
Some codifications pave a more direct road to the lex fori by
making it the basic rule. For example, under the Swiss codification, a
marriage between foreigners in Switzerland need only conform to the
substantive requirements of Swiss law, although conformity with the
national law of either prospective spouse would also suffice 533. The
Lithuanian codification takes a similar, albeit indirect, path to the lex
fori 534. The Ukrainian codification requires compliance with Ukrainian
529. Austrian codif., Art. 17 (2). The Austrian codification subjects the personal legal
effects of marriage and of a registered domestic partnership to the spouses’ common
personal law ; however, if the marriage is not valid or the partnership does not have
legal effect under that law, Austrian law governs. See Austrian codif., Arts. 18, 27b.
530. See Estonian codif., Art. 56 (3) (“A previous marriage of a prospective
spouse shall not hinder contraction of a new marriage if the previous marriage has
been terminated on the basis of a decision made or recognised in Estonia, even if such
decision is not in accordance with the [governing] law of the state of residence of the
prospective spouse”) ; Liechtenstein codif., Art. 18 (2).
531. Belgian codif., Art. 46. This unilateral rule “push[es] this ‘Belgian’ govern-
mental policy forward ; imposing [it] as a superior solution”. J. Erauw and M. Fallon,
“Flexibility and Conflict Justice in the Belgian Code of Private International law”,
in Belgische bijdragen tot het Wereldcongres voor Rechtsvergelijking in Washington
DC 2010, 229, 256 (2011). The authors point out that “[t]his certainly made same-sex
marriage easily permissible in Belgium based on the Belgian nationality of one partner
or on one partner living in Belgium.” Ibid.
532. Dutch codif., Art. 60. See also Hungarian codif., Art. 41/A (in force since
21 June 2012) (providing that a person may enter into a civil union in Hungary, even if
his or her personal law does not allow it, if the other partner is a Hungarian citizen or
either partner is domiciled in Hungary).
533. Swiss codif., Art. 44. The corresponding Dutch provision (Art. 28) allows
compliance either with Dutch law (if one of the spouses is a Dutch citizen or habitual
resident) or with the national law of each spouse.
534. See Lithuanian codif., Art. 1.25 (providing that : (1) “[m]atrimonial capacity
and other conditions to contract marriage” are governed Lithuanian law ; (2) Lithuanian
authorities have jurisdiction to perform a marriage if either prospective spouse is a
Lithuanian citizen or domiciliary ; and (3) for foreigners, matrimonial capacity and
other conditions to contract marriage “may” be determined by the law of the state of
substantive law for all marriages celebrated in Ukraine, even those

between foreigners, and all marriages celebrated abroad in which
one spouse is a Ukrainian national 535. The Algerian, Slovakian, and
Turkish codifications assign a subsidiary, but not insignificant, role to
the lex fori. Under those codifications, the common personal law of the
prospective spouses governs the substantive requirements of marriage,
but if no such common law exists (a usual phenomenon in multistate
cases), the lex fori governs 536.
The Dutch codification imposes lex fori exceptions to foreign laws
that are either too restrictive of the right to marry or too permissive.
Article 29 provides that : (1) solemnization of a marriage may not be
refused because the national law of one prospective spouse imposes
an impediment contrary to Dutch public policy 537 ; and (2) a marriage
may not be solemnized in the Netherlands in violation of certain
impediments prescribed by Dutch substantive law 538. The codifications
of Croatia, FYROM, Hungary, and North Korea also employ a unilateral
rule to guard against foreign laws that are more permissive than the lex
fori 539. For example, under the Hungarian codification, a marriage may
not be celebrated in Hungary if there is an “unavoidable impediment
according to the Hungarian law” 540.
At the other end of the spectrum, the Gabonese codification also
begins with the principle that the national laws of each prospective
spouse govern the substantive requirements of marriage, but also
provides that a foreigner may opt for polygamy if he acquires Gabonese
nationality 541. The codification also provides that, if the otherwise
applicable foreign law prohibits a marriage because of an impediment
that violates Gabonese public policy, the marriage may be solemnized
domicile of both prospective spouses, “if such marriage is recognized in the state of
domicile of either of them”).
535. See Ukrainian codif., Arts. 55, 58.
536. See Algerian codif., Art. 13 ; Slovak codif., Art. 21.1 ; Turkish codif., Art. 13.
537. Dutch codif., Art. 29.2.
538. Dutch codif., Art. 29.1 (prohibiting marriages in which the prospective spouses
have not reached the age of 15, or are related within the second degree ; or if one of
them did not freely consent to the marriage or was party to an existing marriage or
registered partnership).
539. The Croatian and FYROM codifications more specifically define the
impediments as those arising from an existing marriage, consanguinity and mental
incapacity. See Croatian codif., Art. 32 (2) ; FYROM codif., Art. 38 (2). In the North
Korean codification, an existing marriage and consanguinity are mere examples of such
impediments. See North Korean codif., Art. 35.
540. Hungarian codif., Art. 38 (2).
541. Gabonese codif., Art. 34.
in Gabon if the marriage would meet the requirements of Gabonese

law 542.
6. Divorce
Regarding the right to divorce, unilateral rules pointing to the lex fori
have become more prevalent in recent decades. In some states, the lex
fori applies directly and exclusively. For instance, in the United States,
the forum state routinely applies its pro-divorce law to all cases subject
to its jurisdiction. This includes not only cases in which only the plaintiff
is domiciled in the forum state, but also those in which neither spouse
is domiciled there, so long as the defendant appears and fails to contest
jurisdiction 543. Other examples include the Chinese codification, which
provides that a “contested divorce” is governed by the lex fori 544 ; and
the Rwandan codification, which provides that foreigners may obtain a
divorce in Rwanda “in cases provided by Rwandan law” 545.
Under the Dutch codification, Dutch law governs the requirements
for divorce or termination of a registered partnership, and the law of a
common foreign nationality applies only as an exception 546. A Finnish
statute also calls for the application of the lex fori, but restricts the
Finnish courts’ jurisdiction to cases in which either spouse is domiciled
in Finland or the petitioner has a “close connection” to Finland 547.
Other codifications resort to the lex fori when the otherwise applicable
foreign law (usually the spouses’ common personal law) does not allow,
or severely restricts, divorce. However, these codifications require that
at least one of the spouses have a specified affiliation with the forum
state, such as nationality or habitual residence. This group includes the
codifications of Bulgaria, Croatia, Czech Republic, Estonia, FYROM,
Germany, Lithuania, Montenegro, Romania, Slovakia, Slovenia, and

544. Chinese codif., Art. 29.
545. Rwandan codif., Art. 295. This article provides that, as an exception to the
codification’s general rule (that family relations of foreigners are governed by their
national law), a divorce may be granted in Rwanda “only in cases provided by
Rwandan law” (emphasis added). The word “only” functions as a limitation in cases
where Rwanda law is more restrictive than the foreign law. However, in the converse
situation, in which Rwanda law is more permissive, a foreigner may obtain a divorce in
Rwanda even if his national law would not allow it.
546. See Dutch codif., Arts. 56 (for marriages), 87 (for partnerships). The law
of the foreign common nationality may be applied only upon a joint petition of the
spouses or partners, or the petition of one of them, provided there exists a “real societal
connection” with the state of the common nationality. Ibid.
547. See Law 1226/2001, §§ 119-120.
Switzerland 548. The Italian, Belgian and Serbian codifications do not

require such affiliation with the forum state (other than what is necessary
for jurisdiction) 549. The Belgian and Serbian codifications additionally
allow spouses to agree to the application of the law of the forum 550.
The lex fori applies under the Japanese, North Korean, South
Korean, and Polish codifications if one of the spouses is a national or
habitual resident of the forum 551. By contrast, under other codifications,
the lex fori governs when the spouses do not possess (a) the same
nationality 552 ; (b) the same domicile 553 ; or (c) a common nationality or
common habitual residence 554.
The codifications of Paraguay and Ecuador occupy the other end
of the spectrum. Under the Paraguayan codification, (1) a marriage
celebrated abroad may not be resolved by divorce in Paraguay if the
spouses are domiciled in Paraguay 555 ; and (2) a foreign dissolution
of a marriage celebrated in Paraguay does not entitle either spouse to
remarry, except as provided by Paraguayan law 556. The Ecuadorian
codification provides that (1) a foreign marriage may not be dissolved
in Ecuador except in conformity with Ecuadorian law 557 ; and (2) a
foreign dissolution of a marriage that could not have been dissolved
under Ecuadorian law does not allow either spouse to remarry in
Ecuador until the marriage is validly dissolved in Ecuador 558.
Finally, Rome III defers to the law of the forum, both when that law
allows divorce and when it does not. Article 13 provides that
548. See Bulgarian codif., Art. 82 (3) ; Croatian codif., Art. 35 (3) ; Czech codif.,
Art. 50.2 ; Estonian codif., Art. 60 (2) ; FYROM codif., Art. 41 (3) ; German codif.,
Art. 17 (1) ; Lithuanian codif., Art. 1.29 (3) ; Montenegrin codif., Art. 85.4 ; Romanian
codif., Art. 2600 (2) ; Slovak codif., Art. 22.2 ; Slovenian codif., Art. 37 (3) ; Swiss
codif., Art. 61 (3). See also Spanish Civ. Code, Art. 107 (Spanish law displaces the
otherwise applicable law under certain narrow conditions).
549. See Belgian codif., Art. 55 (3) ; Italian codif., Art. 31 ; Serbian draft codif.,
Art. 83. See also Hungarian codif., Art. 41 (a) (in force until 21 June 2009).
550. See Belgian codif., Art. 55 ; Serbian draft codif., Art. 80.
551. See Japanese codif., Art. 27 ; North Korean codif., Art. 38 ; South Korean
codif., Art. 39 ; Polish codif., Arts. 2 (3), 54. See also Liechtenstein codif., Art. 21 (3).
552. See Slovak codif., Art. 22.
553. See Togo codif., Art. 714 (2).
554. See Burkina Faso codif., Art. 1028 ; Congo-Brazzaville codif., Art. 822 ;
Senegalese codif., Art. 843 ; Turkish codif., Art. 14 (1).
555. Paraguayan codif., Art. 164.
556. Paraguayan codif., Art. 165. Until 1991, Article 163 of the Paraguayan
codification provided that a marriage celebrated in Paraguay “is not dissolved except
by the death of one spouse”. This article was amended in 1991 to allow for divorce. See
Article 22 of Law No. 45 of 1991.
557. Ecuador codif., Art. 93.
558. Ecuador codif., Art. 92.
“[n]othing in [Rome III] shall oblige the courts of a participating

Member State whose law does not provide for divorce or does not
deem the marriage in question valid for the purposes of divorce
proceedings to pronounce a divorce by virtue of the application of
[Rome III]” 559.
Under Article 10, when the applicable law “makes no provision for
divorce or does not grant to one of the spouses equal access to divorce
or legal separation on grounds of their sex, the law of the forum shall
apply” 560.
7. Adoption
The Belgian codification provides that although the establishment of

filiation by adoption is governed by the law of the adopter’s nationality,
a Belgian court should instead apply Belgian law when the application
of the foreign law is “clearly harmful to the higher interest of the
adoptee and if the adoptee or the adopters have manifestly close links
with Belgium” 561. The same codification further provides that the
law of the adoptee’s habitual residence governs the consent of both
the adoptee and her parents, but Belgian law governs if the foreign
law “does not provide for the necessity of such consent or ignores the
institution of adoption” 562.
Under the Dutch codification, Dutch law governs all issues of an
adoption pronounced or revoked in the Netherlands, except the issue
of parental or institutional consent to adoption, which is governed by
the child’s national law. However, if that law does not recognize the
concept of adoption, Dutch law governs 563.
The Swiss codification provides that Swiss law governs the
requirements for an adoption in Switzerland. However, if it appears
that the state of domicile or nationality of the adopter(s) would not
recognize the adoption and the child would be “seriously prejudiced
thereby”, the court should consider that law, and “[if] recognition
does not appear to be assured, the adoption must not be granted” 564.
559. Council Regulation (EU) No. 1259/2010, Art. 13, of 20 December 2010,

implementing enhanced co-operation in the area of the law applicable to divorce and
legal separation, 2010 OJ (L 343/10) (hereinafter “Rome III”).
560. Rome III, Art. 10.
561. Belgian codif., Art. 67.
563. Dutch codif., Art. 105.
564. Swiss codif., Art. 77 (1).
Moreover, an adoption granted in a foreign state may be annulled in

Switzerland “only if there also exists a ground for annulment under
Swiss law” 565.
8. Maintenance
As Chapter VI discusses, many codifications have adopted alter-
native-reference rules authorizing the application of the law of
whichever state having designated contacts with the parties favours
the maintenance obligee 566. However, sometimes the foreign law
applicable under those rules does not provide for maintenance. In
such cases, some codifications authorize the application of the lex
fori, including the codifications of Albania, Belgium, Burkina Faso,
Germany, Hungary, and Switzerland 567. The Hungarian codification
provides that Hungarian law governs the status and maintenance rights
of a Hungarian child, or a child residing in Hungary, if that law is more
favourable to the child than the otherwise applicable foreign law 568.
Strictly speaking, these are not unilateral rules because the lex fori
applies as a last resort, but these rules do reflect the forum’s desire to
protect important public interests when the foreign law does not.
9. Successions
Many codifications employ bilateral rules providing that the law of
the decedent’s last domicile or nationality governs his or her succession,

566. See infra, Chap. VI.5.E.3.b.
567. See Albanian codif., Art. 26.3 (the applicable law is that of the obligee’s
habitual residence, or of the common nationality and residence of obligor and obligee ;
however, if those laws do not grant maintenance, Albanian law governs) ; Belgian codif.,
Art. 74 (the applicable law is that of the obligee’s habitual residence, or the country of
the common nationality of obligor and obligee if the obligor is habitually resident in that
country ; but, if those laws do not grant maintenance, the law of common nationality
applies, and if that law does not grant maintenance, Belgian law governs) ; Bulgarian
codif., Art. 87 (alternative references to the law of the obligee’s habitual residence,
or nationality ; common national law of the obligor and obligee ; or Bulgarian law) ;
Burkina Faso codif., Art. 1041 (alternative references to the laws of the obligee’s
domicile ; the common national law of the obligor and obligee ; or Burkina Faso law) ;
German codif., Art. 18 (subject to certain qualifications, the court may choose the law
most favourable to the maintenance obligee from among the laws of : (a) the obligee’s
habitual residence, (b) the common nationality of the obligor and the obligee, and
(c) the law of the forum) ; Swiss codif., Arts. 49, 83.
568. Hungarian codif., Art. 46. In 2011, this article was amended to exclude
maintenance, which is now governed by the EU Maintenance Regulation. But the
article remains applicable to the status of the child and “the family law relationships
between him and his parents”.
but also provide unilateral exceptions ensuring the application of the lex
fori to immovable (and in some instances movable) property situated
in the forum state. In some codifications, such as those of Argentina,
Gabon, Paraguay, the United Arab Emirates, and Uruguay, these
exceptions apply only to immovable property situated in the forum
state, even if that state has no other connections with the case 569.
The Venezuelan codification provides that if a decedent owned
immovable or movable property situated in Venezuela, the decedent’s
descendants, ascendants, and surviving spouse have a claim against that
property in order to satisfy their forced share guaranteed by Venezuelan
law 570. It is unclear whether the forced share calculation is based on
the entire estate (i.e., including property situated outside Venezuela),
or only on property situated in Venezuela. The Taiwanese codification
follows the second option, but does not limit the claim to forced
heirs. Under that codification, the decedent’s national law governs his
succession, but a person qualifying as a “successor” under Taiwanese
law “can succeed [in] the estate situated within the Republic of China
(Taiwan)” 571.
The Italian codification provides that the decedent’s national law
governs her succession but also allows a testator to choose instead the
law of her residence. However, if the testator is an Italian national, her
choice of law “shall not affect the rights that Italian law confers on the
heirs who are resident in Italy” 572.
The Louisiana codification contains two unilateral rules : Article 3533
for immovables situated in Louisiana, and Article 3544 for immovables
situated elsewhere. Both articles call for the application of the law of
the situs state, but each is subject to different exceptions. For Louisiana
immovables, the exception operates against the lex fori. Article 3533
provides that the application of Louisiana law to Louisiana immovables
does not include Louisiana’s forced heirship law if, at the time of death,
the deceased was domiciled outside Louisiana and left no forced heirs
domiciled in Louisiana. For foreign immovables, the exception from
the situs rule operates in favour of the lex fori. Under Article 3544, if
the deceased was domiciled in Louisiana at death and was survived by
forced heirs, any of whom were domiciled in Louisiana at that time, the
569. See Argentine codif., Art. 2644 ; Gabon codif., Art. 54 ; Paraguay codif.,
Art. 2447 ; UAE codif., Art. 19.5 ; Uruguay draft codif., Art. 30.1 (a).
570. Venezuelan codif., Arts. 34, 35.
571. Taiwanese codif., Art. 58.
572. Italian codif., Art. 46 (2).
value of foreign immovables is included in calculating the decedent’s

disposable portion, and in satisfying forced shares 573.
Finally, the Successions Law of Israel provides that,
“where foreign law confers rights of interstate succession upon
anyone who is not related to the deceased by blood, marriage,
affinity, or adoption, such law shall not be followed except in so
far as it recognizes rights of succession as aforesaid which are
conferred by Israel law” 574.
10. Formal validity

As Chapter VI notes, most codifications have adopted alternative-
reference rules of validation for the formal validity of contracts and
other juridical acts. These rules authorize the application of the law of
whichever state, among several connected to the act, would validate
the act 575. However, some codifications have much narrower validation
rules, which operate only in favour of the lex fori. For example, under
the Russian codification, the form of a juridical act, including a power
of attorney, is governed by the law of the state where the act was made.
However, if the act was made in a foreign state, and is formally invalid
under that state’s law but valid under Russian law, the act shall be
deemed valid – apparently, even if Russia has no relevant connections
other than the jurisdictional ones 576. Thus, the law of the forum qua
forum applies to validate an act made elsewhere, but foreign law does
not apply to validate an act made in the forum state. Identical rules are
found in the codifications of Armenia, Azerbaijan, Belarus, Kazakhstan,
Kyrgyzstan, Tajikistan, and Uzbekistan 577.
These codifications have also adopted similarly narrow, unilateral
rules for testamentary formalities. The rules generally provide that the
form of a testament is governed by the law of the state in which the
testator was domiciled at the time of making the testament. However,
573. For an explanation of the rationale of these articles by their drafter, see

Symeonides, The “Dismal Swamp”, at 1092-1097.
574. Law 5765/1965, § 144.
575. See infra, Chap. VI.5.C.
576. See Russian codif., Art. 1209 (1).
577. See Armenian codif., Arts. 1281 (1), 1282 ; Azerbaijan codif., Arts. 17, 18 ;
Belarus codif., Arts. 1116, 1117 ; Kazakhstan codif., Arts. 1104, 1105 ; Kyrgyzstan
codif., Arts. 1190, 1191 ; Tajikistan codif., Arts. 1210, 1211 ; Uzbekistan codif.,
Arts. 1181, 1182. See also Vietnamese codif., Art. 770 (1). Article 1281 (2) of the
Armenian codification provides that a foreign transaction, in which at least one party
is an Armenian legal or natural person, must be in written form.
if the testament was formally invalid under that law, but valid under
the law of the forum qua forum, then the testament shall be treated as
formally valid 578.
11. Contracts
Many modern choice-of-law codifications protect weak parties

(such as consumers or employees) through bilateral, result-selective
rules that protect those parties from the adverse consequences of a
potentially coerced or uninformed assent to choice-of-law clauses 579.
These codifications provide that a choice-of-law clause may not deprive
a consumer or employee of the protections afforded by the mandatory
rules of the state whose law would otherwise govern the contract in the
absence of such a clause.
Some codifications limit this protection to consumers domiciled
in the forum state, by exempting contracts involving domiciliary
consumers from the scope of party autonomy and subjecting these
contracts (expressly or implicitly) to the lex fori. As Jürgen Basedow
observes, “The political background of consumer protection policy
favours unilateral trends.” 580 The same can be said about employment
contracts. In fact, “the national interests of States are enforced with much
more resolve in international employment law than in international
consumer law” 581. For example, the Ukrainian codification provides
that Ukrainian law governs contracts for employment to be performed
in Ukraine, as well as contracts between Ukrainian employers and
employees for employment outside Ukraine 582.
The Puerto Rico draft code provides similar protection through three
unilateral rules, which apply to consumers, insureds, and employees,
578. See Russian codif., Art. 1224 (2) ; Armenian codif., Art. 1292 (2) ; Belarus
codif., Art. 1135 ; Kazakhstan codif., Art. 1122 ; Kyrgyzstan codif., Art. 1207 ; Tajikistan
codif., Art. 1232 ; Uzbekistan codif., Art. 1198.
579. See infra, Chap. VI.5.E.3.d.
580. Basedow, Open Societies 374. Basedow continues as follows :
“[W]hen promoting consumer protection, politicians think of the voters/
consumers in their own constituency and their protection vis-à-vis professionals,
both domestic and foreign. They are much less concerned with foreign consumers
vis-à-vis domestic professionals : in this relationship they rather tend to favour the
domestic professional who is a voter and who – as an employer – helps to promote
prosperity at home. Many of the resulting statutory conflict rules are therefore of
a unilateral nature.” Ibid.
581. Ibid., at 414. For extensive discussion of these contracts, see ibid. 376-415.
582. See Ukrainian codif., Arts. 52, 55.
respectively. For consumer contracts, the draft code provides that,

“unless the consumer requests otherwise”, the law of Puerto Rico
governs if (1) the consumer was domiciled or resided in Puerto Rico at
the time of contracting ; and (2) his assent to the contract was obtained,
or was induced in substantial measure by an invitation or advertisement,
in Puerto Rico 583.
The draft code provides a similar rule for contracts of life, health,
or disability insurance “if the policy or its renewal was delivered or
issued for delivery in Puerto Rico or the insured was there domiciled
at the time the relevant issuance or renewal occurred” 584. This article
also applies to all other insurance contracts (except those for ocean
marine or foreign trade insurance) if, at the time the policy was issued
or renewed, the insurer “knew or should have known that the insured
risk was or would be located primarily in Puerto Rico” 585.
Puerto Rico law also governs employment contracts for services to
be rendered primarily in Puerto Rico, “unless the employee requests
otherwise” 586. In contracts for services to be rendered outside Puerto,
the draft code provides that a person domiciled or residing in Puerto
Rico, and hired there “may not be deprived of the protection provided
by those mandatory rules of Puerto Rican law whose application is
appropriate regardless of the place where the services are rendered” 587.
Similarly, the Oregon contracts codification contains unilateral rules
for certain Oregon contracts and contracts with the State of Oregon.
The codification provides that Oregon law governs : (1) contracts for
construction work to be performed primarily in Oregon ; (2) contracts
for services to be rendered primarily in Oregon by an Oregon resident ;
(3) consumer contracts, if the consumer is an Oregon resident and the
consumer’s assent is obtained in Oregon or the consumer is induced
to enter into the contract in substantial measure by an invitation or
advertisement there ; and (4) contracts for services to be rendered, or
goods to be delivered, in Oregon, if the State of Oregon or any of its
agencies or subdivisions is a party to the contract 588.
583. Puerto Rico draft codif., Art. 35. If the consumer “requests otherwise”, the
applicable law is chosen through the bilateral rules provided in the draft code. For
discussion, see Symeonides, “The Puerto Rico Projet”, at 433-434.
584. Puerto Rico draft codif., Art. 37.
586. Puerto Rico draft codif., Art. 36 (1).
587. Puerto Rico draft codif., Art. 36 (2).
588. See Or. Rev. Stat., § 15.320 (1)-(4). In the last category, the contract may
waive the application of Oregon law. For the rationale behind these provisions, see
Symeonides, “Oregon Contracts Exegesis”, at 212-214. The Hungarian codification
The Quebec codification protects Quebec insureds through a uni-

lateral rule. Article 3119 provides that, [n]otwithstanding any agreement
to the contrary”, a contract insuring property or “an interest” situated
in Quebec or “subscribed in Québec by a person resident in Québec” is
governed Quebec law “if the policyholder applies therefor in Québec
or the insurer signs or delivers the policy in Québec” 589. The article
also provides that Quebec law governs a group insurance contract if
“the participant has his residence in Québec at the time he becomes a
participant” 590.
12. Rights in movables
Under the Taiwanese codification, Taiwanese law governs real rights

established on a movable prior to its importation to Taiwan 591. The
Estonian codification provides that if a movable is brought into Estonia,
and the creation or extinction of a real right to it has not been completed
abroad, “the events which occurred abroad shall be deemed to have
occurred in Estonia” 592.
The North Korean codification provides that rights in intellectual
property, such as copyright and patents, are governed by North Korean
law, and if that law does not have a rule on the subject, by international
treaties 593.
13. Mea culpa
This author has no criticism for choice-of-law rules designed to

protect important interests or values of the forum state. In fact, he is
guilty of being associated with the adoption of protectionist unilateral
rules. Among them are the aforementioned rules protecting Puerto Rico
consumers, employees, and insureds, and the rules protecting Oregon
consumers and employees. Another example from tort conflicts is the
third paragraph of Article 3543 of the Louisiana Civil Code. As drafted
provides that “the legal relationships of the Hungarian State shall be governed by its
own law”, except when the state expressly consents to the application of foreign law,
or when the legal relationship concerns foreign real property owned by the State or
participation in a foreign economic organization. Hungarian codif., Art. 17.
589. Quebec codif., Art. 3119.
590. Ibid.
592. Estonian codif., Art. 18 (3).
593. North Korean codif., Art. 23.
by this author as Reporter, the article originally was a bilateral rule

consisting of two paragraphs. The paragraphs provided that issues of
conduct regulation are governed : (1) by the law of the state of conduct ;
but, (2) if the injury foreseeably occurred in another state that imposes
a higher standard of conduct, the law of the state of injury governs.
However, during the legislative process, and despite the Reporter’s
strenuous objections, a third paragraph was added consisting of a
unilateral protectionist rule. That rule provides that conduct in Louisiana
by a person domiciled in, or having another significant connection with
Louisiana, is to be judged according to Louisiana standards of conduct
and safety, even if the conduct violates the higher standards of the injury
state 594. As the Reporter later conceded, this paragraph’s adoption “is a
typical example of hometown protectionism which should be neither
vilified nor, of course, idealized, but can be understood as a very
common part of the legislative process in this imperfect world” 595.
This author has also drafted other protectionist unilateral rules,
without coercion. One such rule is found in the Oregon tort codifica-
tion, which generally consists of bilateral rules. One of these rules
(§ 15.440 (3) (c) ) provides that in cross-border torts, the plaintiff
may choose between the laws of the state of conduct or the state of
injury, subject to certain conditions. However, in derogation from that
rule and others, Section 15.430 contains a unilateral rule designed to
protect Oregon public entities and certain Oregon defendants from the
application of foreign law. This rule mandates the application of Oregon
law to : (1) actions against a “public body of the State of Oregon” ;
(2) actions against the owner of an Oregon immovable that “seek to
recover for, or to prevent, injury on that property and arising out of con-
duct that occurs in Oregon” ; and (3) actions for professional malprac-
tice arising from “services rendered entirely in Oregon by personnel
licensed to perform those services under Oregon law” 596. Thus, a plain-
tiff who is injured in the neighbouring state of Washington as a result
of the Oregon conduct of the aforementioned defendants, will not
have the option of choosing Washington law under § 15.440 (3) (c) 597.
594. It is worth noting that an identical article, drafted for the Puerto Rico Draft
Code by the same author, does not contain this third paragraph.
595. Symeonides, “Louisiana Exegesis”, at 714.
596. Or. Rev. Stat., § 15.430. For an explanation by their drafter of the rationale
behind these provisions, see Symeonides, “Oregon Torts Exegesis”, at 983-986.
597. The Oregon and Louisiana codifications also provide unilateral rules for certain
product liability conflicts with enumerated connections with the forum state. See La.
Civ. Code, Art. 3545 ; Or. Rev. Stat., § 15.435. However, these unilateral rules are
It is important to stress that not all unilateral rules are protectionist

in the narrow sense. For example, two outward-looking unilateral rules
drafted by this author for the Louisiana codification are designed to
protect foreign decedents and foreign surviving spouses. The first is
found in Article 3533, which provides that Louisiana’s forced heirship
law shall not apply to the succession of Louisiana immovables owned
by a foreign decedent who left no forced heirs domiciled in Louisiana
at the time of his death 598. The second outward-looking unilateral rule
is found in Article 3527, on matrimonial regimes. It provides that,
upon the death of a spouse domiciled outside Louisiana, any Louisiana
immovables he acquired while domiciled outside Louisiana and not
qualifying as community property are subject to the same rights in
favour of the surviving spouse as provided by the law of the state of the
decedent’s last domicile 599. The legislative passage of these unilateral
rules was extremely difficult politically. One reason for this difficulty
is that they are an unselfish derogation from the bilateral situs rule,
which is sacrosanct in the United States and remains the basic rule in
Louisiana.
B. Mandatory rules, or rules of immediate application

Additional evidence of unilateralism’s resilience, or resurgence, is
the fact that most PIL codifications enacted in the last 50 years give
priority to the rules that Francescakis called règles d’application
immédiate. These rules of immediate or necessary application, also
called mandatory or imperative rules 600, are substantive legal rules
paired with bilateral rules covering all product liability cases that fall beyond the scope
of the unilateral rules. See Symeonides, “Louisiana Exegesis”, at 749-759 ; “Oregon
Torts Exegesis”, at 986-993.
598. See La. Civ. Code, Art. 3533 (providing that, although succession to
immovables situated in Louisiana is governed by Louisiana law, “[t]he forced heirship
law of [Louisiana] does not apply if the deceased was domiciled outside [Louisiana] at
the time of death and at the time he acquired the immovable and he left no forced heirs
domiciled in [Louisiana] at the time of his death”).
599. Article 3526 (2) provides similar protection to the non-owning spouse for cases
in which the termination of the community occurred while at least one spouse was
domiciled in Louisiana but the Louisiana immovable was acquired while the owning
spouse was domiciled in another state. The law of the latter state determines the rights
of the non-owning spouse. For discussion of Articles 3526-3527 by their drafter, see
S. Symeonides, “Louisiana’s Draft on Successions and Marital Property”, 35 Am. J.
Comp. L. 259 (1987) ; S. Symeonides, “In Search of New Choice-of-Law Solutions
to Some Marital Property Problems of Migrant Spouses : A Response to the Critics”,
13 (3) Comm. Prop. J. 11 (1986).
600. These rules are known as règles d’application immédiate, normes d’intervention,
or lois de police in France ; normes d’applicacione necessaria in Italy ; normas de
embodying important state interests, which, for this reason, must be

applied to multistate situations necessarily, mandatorily, and directly,
that is, regardless of whether a choice-of-law rule authorizes their
application, and even if a choice-of-law rule calls for the application
of another law 601.
Article 13 of the un-enacted Benelux Uniform Law on PIL of 1969
was the first codification expressly to provide for “imperative” rules,
defining them as rules “whose peculiar nature and object exclude the
application of any other law” 602. However, Article 13 was limited
to the narrow context of party autonomy, stating that, under certain
circumstances, mandatory rules would override a contractual choice
of law 603. In contrast, Article 7 of the 1972 EEC Draft Convention on
the Law Applicable to Contractual and Non-Contractual Obligations
broadened the scope of mandatory rules by providing that, under
certain conditions, these rules could override not only contractual, but
applicación necesaria in Spain ; Eingriffsnormen, in Germany ; and voorrangsregels

in the Netherlands. In addition to sources cited infra, these rules are discussed in
A. Bonomi, Le norme imperative nell diritto internazionale privato (1998) ; U.
Liukkunen, The Role of Mandatory Rules in International Labour Law : A Comparative
Study in the Conflict of Laws (2004) ; Z. Papassiopi-Passia, Rules of Immediate
Application and Substantive Choice of Law Rules (in Greek) (1989) ; B. Remy, Exception
d’ordre public et mécanisme des lois de police en droit international privé (2008) ;
K. A. S. Schäfer, Application of Mandatory Rules in the Private International Law of
Contracts : A Critical Analysis of Approaches in Selected Continental and Common
Law Jurisdictions (2010) ; C. Tsouka, Les lois étrangères d’application immédiate
et leur impact sur la nature méthodologiques du droit international privé (1997) ;
N. Voser, Die Theorie der Lois d’application immediate Im Internationalen Privatrecht
(1993) ; A. Bonomi, “Mandatory Rules in Private International Law : The Quest for
Uniformity of Decisions in a Global Environment”, 1 Ybk. Priv. Int’l L. 219 (1999) ;
J. Fawcett, “Evasion of Law and Mandatory rules in Private International Law”, 49
Cambridge LJ 44 (1990) ; T. Guedj, “The Theory of the Lois De Police, a Functional
Trend in Continental Private International Law : A Comparative Analysis with Modern
American Theories”, 39 Am. J. Comp. L. 661 (1991) ; T. Hartley, “Mandatory Rules
in International Contracts : The Common Law Approach”, 266 Recueil des cours
337 (1998) ; K. Siehr, “False conflicts, lois d’application immédiate und andere
‘Neuentdeckungen’ im IPR : zu gewissen Eigengesetzlichkeiten kollisionsrechtlicher
Systeme”, in J. Basedow et al. (eds.), Festschrift für Ulrich Drobnig 443 (1998) ;
F. Vischer, “Lois d’application immédiate als Schranken von Gerichsstands‑und
Schiedsvereinbarungen”, in A. Overbeck et al. (eds.), Collisio Legum : Studi di diritto
internazionale privato per Gerardo Broggini, 577 (1997) ; M. Wojewoda, “Mandatory
Rules in Private International Law”, 7 Maastricht J. Eur. & Comp. L. 183 (2000).
601. See B. Audit and L. d’Avout, Droit international privé 171-172 (“On parle
de loi d’application immédiate lorsqu’une règle interne est appliquée à une situation
internationale indépendamment de sa désignation par une règle de conflit”).
602. Benelux Law, Art. 13.
603. Article 13 of the Benelux Law provided that,
“If the contract is clearly located in a certain country, provisions of the law of
that country whose peculiar nature and object exclude the application of any other
law cannot be excluded by the will of the parties.”
also legislative or judicial choices of law. With small modifications,

this provision survived as Article 7 of the 1980 Rome Convention on
Contractual Obligations, which is reproduced below.
The 1978 Hague Convention on the Law Applicable to Agency
contained a similar article, which stated that
“effect may be given to the mandatory rules of any State with
which the situation has a significant connection, if and in so far as,
under the law of that State, those rules must be applied whatever
the law specified by its choice of law rules” 604.
This convention did not take effect until 1992. In the meantime,
the Rome Convention went into effect in 1980 and differentiated
between the mandatory rules of the forum state and those of another
state 605.
Since then, several choice-of-law codifications have followed suit by
providing express statutory sanction to mandatory rules, including (in
chronological order) the codifications of :
Switzerland (1987), Germany (1989), Quebec (1991), United
Kingdom (1995), Italy (1995), Uzbekistan (1997), Armenia
(1998), Belarus (1998), Georgia (1998), Kyrgyzstan (1998),
Tunisia (1998), Venezuela (1998), Kazakhstan (1999), Macau
(1999), Azerbaijan (2000), Lithuania (2000), South Korea (2001),
Estonia (2002), Moldova (2002), Russia (2002), Belgium (2005),
Bulgaria (2005), Tajikistan (2005), Ukraine (2005), FYROM
(2005), Turkey (2007), Uruguay (draft 2009), China (2010),
Taiwan (2010), Poland (2011), Netherlands (2011), Serbia (draft
2012), Argentina (2014), and Montenegro (2014) 606.
604. Hague Convention of 14 March 1978 on the Law Applicable to Agency,

Art. 16.
605. See Rome Convention, Art. 7 (reproduced infra). See also Rome Convention,
Art. 3 (3).
606. See Swiss codif., Arts. 18, 19 ; German codif., Art. 34 ; Quebec codif.,
Arts. 3076, 3079, 3129 ; English tort statute, § 14 (4) ; Italian codif., Art. 17 ; Uzbekistan
codif., Art. 1165 ; Armenian codif., Art. 1259 ; Belarus codif., Art. 1100 ; Georgia
codif., Art. 6 ; Kyrgyzstan codif., Art. 1174 ; Tunisian codif., Art. 38 ; Venezuelan
codif., Art. 10 ; Kazakhstan codif., Art. 1091 ; Macau codif., Art. 21 ; Azerbaijan codif.,
Art. 5 ; Lithuanian codif., Art. 1.11 ; South Korean codif., Art. 7 ; Estonian codif.,
Art. 31 ; Moldovan codif., Art. 1584 ; Russian codif., Art. 1192 ; Belgium codif.,
Art. 20 ; Bulgarian codif., Art. 46 ; Tajikistan codif., Art. 1198 ; Ukrainian codif.,
Art. 14 ; FYROM codif., Art. 14 ; Turkish codif., Arts. 6, 31 ; Uruguayan draft codif.,
Art. 6 ; Chinese codif., Art. 5 ; Taiwanese codif., Art. 7 ; Polish codif., Art. 8 ; Dutch
codif., Art. 7 ; Serbian draft codif., Art. 40 ; Argentinean codif., Art. 2599 ; Montenegrin
codif., Art. 10.
In addition, the Rome I, Rome II, and Successions Regulations 607 ;

the Mexico City Convention 608 ; and at least five Hague conventions, in
addition to the Agency convention 609, also provide for the application
of mandatory rules.
Moreover, the concept of mandatory rules has been recognized
by special statutes, judicial practices, or academic doctrines in states
(1) that have not recently enacted a comprehensive choice-of-law
codification, or (2) whose codification does not contain an express
statutory rule giving priority to mandatory rules. Australia, Finland,
Israel, and Norway are some of the states in the first group, while
Austria, Croatia, Greece, Portugal, and Spain fall within the second
group 610. France belongs to a special category, as it is the intellectual
motherland of the modern doctrine of mandatory rules 611.
Altogether, 35 PIL codifications enacted in the last 50 years, three
EU Regulations, and nine international conventions contain general
provisions giving priority to mandatory rules 612. This count does not
include codifications that provide for mandatory rules only as limitations
to party autonomy, or states that recognize mandatory rules only through
special statutes, judicial decisions, or academic doctrine. Twenty-two
codifications, two EU Regulations, and six conventions expressly
authorize the application of the mandatory rules of both the forum state
and a third foreign state, in addition to the state of the lex causae 613. In
contrast, 13 codifications, Rome II, and two conventions do so for only
607. See Rome I, Arts. 9, 3 (3), 3 (4) ; Rome II, Art. 16 ; Successions Regulation,
Art. 30.
608. See Inter-American Convention on the Law Applicable to Contracts, Art. 11.
609. See Hague Convention of 1 July 1985 on the Law Applicable to Trusts and
on their Recognition, Art. 17 ; Hague Convention of 22 December 1986 on the Law
Applicable to Contracts for the International Sale of Goods, Art. 17 ; Hague Convention
of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased
Persons, Art. 6 ; Hague Convention of 13 January 2000 on the International Protection
of Adults, Art. 20 ; Hague Convention of 5 July 2006 on the Law Applicable to Certain
Rights in Respect of Securities Held with an Intermediary, Art. 11 ; Hague Principles
for Choice of Law in International Contracts, Art. 11.
610. See Symeonides, Codifying Choice of Law, at 304.
611. See Francescakis, supra, Chap. V.3.A ; P. Malaurie, “Lois de police et méthodes
de conflits de lois en matière de commerce exterieur”, 8 J. Soc. legisl. comp. 541
(1986) ; P. Mayer, “Les lois de police”, Travaux com. français dr. int’l priv. 105 (1988) ;
J. Schultsz, “Les lois de police étrangères”, Trav. com. français dr. int’l priv. 1982‑83,
39 (1983).
612. For a table listing these codifications, see Symeonides, Codifying Choice of
Law, at 305-306.
613. Obviously, if a mandatory rule is part of the lex causae, that rule applies as part
of the lex causae. It applies because of, rather than “irrespective” of, the choice-of-law
rule that designates the lex causae.
the mandatory rules of the forum state 614. In virtually all codifications,

the third state is one with a “close” (but not necessarily a closer or the
closest) connection with the case 615. The standard for applying foreign
mandatory rules is usually different from the standard for applying the
forum’s corresponding rules 616. While the forum’s mandatory rules
apply automatically, the application of foreign mandatory rules is
always discretionary. The court “may” apply the mandatory rules of a
third state after considering the “nature” and “purpose” of those rules,
as well as the “consequences of their application or non-application” 617.
Perhaps the most widely discussed provision, with respect to
mandatory rules, is Article 7 of the Rome Convention. Article 7 defined
mandatory rules in the first paragraph and differentiated between
foreign and forum mandatory rules in its two paragraphs, as follows :
“1. When applying . . . the law of a country, effect may be
given to the mandatory rules of the law of another country with
which the situation has a close connection, if and in so far as,
under the law of the latter country, those rules must be applied
whatever the law applicable to the contract. . . .
2. Nothing in this Convention shall restrict the application of
the rules of the law of the forum in a situation where they are
mandatory irrespective of the law otherwise applicable to the
contract.” 618
614. The Quebec codification contains – in addition to general articles for the
mandatory rules of the forum qua forum (Art. 3076), and for foreign mandatory
rules (Art. 3079) – a special article (Art. 3129) mandating the application of Quebec
law “in matters of civil liability for damage suffered in or outside Québec as a result
of exposure to or the use of raw materials, whether processed or not, originating in
Québec”. In addition, the codification provides for mandatory rules as a limitation
to party autonomy in consumer and employment contracts (Arts. 3117, 3118), and
contracts in general (Art. 3111).
615. Except as noted below, all pertinent provisions use the phrase “close
connection”. Tunisia uses the phrase “strong” connection ; Lithuania uses the phrase
“most closely related” ; the Hague Agency Convention uses the phrase “a significant
connection”. Article 9 of Rome I refers only to the state of performance, and only
insofar as the law of that state renders performance of the contract illegal. The proposed
Regulations on Matrimonial Regimes and on Registered Partnerships simply refer to
a “Member State”, and the English tort statute simply refers to rules which have effect
“notwithstanding the rules of private international law”.
616. The only exceptions are the English tort statute, the Hague Agency Convention,
and the EU Succession Regulation.
617. Dutch codif., Art. 7 (3). Identical or similar language exists in all provisions
discussed here. Of course, considering the nature, purpose and consequences of a rule
is also necessary for determining whether a rule of the lex fori qualifies as a mandatory
rule.
618. Rome Convention, Art. 7. For discussion, see S. Knöfel, “Mandatory Rules and
Choice of Law : A Comparative Approach to Article 7 (2) of the Rome Convention”,
Although the second paragraph received widespread approval,

the part of the first paragraph authorizing the application of foreign
mandatory rules proved controversial 619. The controversy continued
during the deliberations for converting the Convention into the
Rome I Regulation. As a compromise, Article 7 of the Convention was
replaced with Article 9 of Rome I, which significantly narrowed the
circumstances in which foreign mandatory rules may be applied 620.
Instead of referring to the mandatory rules of a state with a “close
connection”, the third paragraph of Article 9 refers only to the state
of a contract’s performance and authorizes the application of that
state’s mandatory rules only to the extent they render performance
“unlawful” 621.
Paragraph 1 of Article 9 of Rome I provides a clearer, albeit narrow,
definition of mandatory rules. They are those rules that the enacting
country regards as
“crucial . . . for safeguarding its public interests, such as its
political, social or economic organisation, to such an extent that
they are applicable to any situation falling within their scope,
irrespective of the law otherwise applicable” 622.
Article 9 characterizes these rules as “overriding” mandatory
rules 623 because they override, pre-empt, or displace the ordinary
1999 J. Bus. L. 239 (1999) ; C. Tillman, “The Relationship between Party Autonomy
and the Mandatory Rules in the Rome Convention”, 2002 J. Bus. L. 45 (2002).
619. As a result, seven states filed a reservation to that paragraph, as allowed by the
Convention. The seven states were Ireland, Germany, Latvia, Luxembourg, Portugal,
Slovenia, and the United Kingdom.
620. See A. Chong, “The Public Policy and Mandatory Rules of Third Countries in
International Contracts”, 2 (1) J. Priv. Int’l L. 27 (2006) ; M. Hellner, “Third Country
Overriding Mandatory Rules in the Rome I Regulation : Old Wine in New Bottles ?”,
5 (3) J. Priv. Int’l L. 447 (2009).
621. Rome I, Art. 9 (3). A similar controversy led to the deletion of an earlier
reference to foreign mandatory rules in Rome II, although Article 17 contemplates such
rules when it authorizes consideration of the rules of “safety and conduct” of the state
in which the conduct occurred.
622. Rome I, Art. 9 (1). This definition is drawn from a decision of the Court of
Justice of the European Communities in Joined Cases C-369/96 and C-376/96 (Arblade
and Leloup) of 23 November 1999, [1999] ECR 1-8453, 1-8498, (1999). However, the
Court uses narrower language to the extent it refers to rules that “require compliance . . .
by all persons present on the national territory . . . and all legal relationships within that
State”. For discussion of Article 9 and case law under it, see Basedow, “Open Societies”,
332, 404-408 ; O. Remien, “Variationen zum Thema Eingriffsnormen nach Art. 9 Rom
I-VO und Art. 16 Rom II-VO unter Berücksichtigung neuerer Rechtsprechung zu
Art. 7 Römer Übereinkommen”, in H. Kronke and K. Thorn (eds.), Grenzen überwinden,
Prinzipien bewahren : Festschrift für Bernd von Hoffmann 334 (2012).
623. Rome I, Art. 9 (1).
choice-of-law rules and the substantive law that would apply under
those rules 624.
Rome I, which is confined to contract conflicts, distinguishes between
“overriding” mandatory rules (Article 9) and “simple” mandatory
rules, which it defines in Articles 3 (3), 6, and 8 as rules that “cannot be
derogated from by agreement” 625. Article 3 (3) provides that, when “all
other elements” are located in a country other than the country whose
law the parties have chosen, their choice “shall not prejudice” the
application of the “simple” mandatory rules of that country 626. Articles
6 and 8 provide that a choice-of-law clause in a consumer contract or
employment contract, respectively, may not deprive a consumer or
employee of the protection afforded by the mandatory rules of the lex
causae. Similar provisions are found in the laws of many states, both
within the European Union 627 and elsewhere, including : the Dominican
Republic, FYROM, Japan, South Korea, Liechtenstein, Montenegro,
Puerto Rico, Quebec, Russia, Serbia, Turkey, Ukraine, and Uruguay 628.
One difference between the “simple” and the “overriding” mandatory
rules is that the former override a contractual choice of another law,
whereas the latter additionally override legislative or judicial choice
of another state’s law. Another difference is that the threshold is higher
for applying the “overriding” rules than for applying the “simple”
624. See A. Bonomi, “Overriding Mandatory Provisions in the Rome I Regulation

on the Law Applicable to Contracts”, 10 Ybk. Priv. Int’l L. 285 (2008) ; A. Dickinson,
“Third-Country Mandatory Rules in the Law Applicable to Contractual Obligations : So
Long, Farewell, Auf Wiedersehen, Adieu ?”, 3 (1) J. Priv. Int’l L. 53 (2007) ; J. Harris,
“Mandatory Rules and Public Policy under the Rome I Regulation”, in F. Ferrari and
S. Leible (eds.), Rome I Regulation : The Law Applicable to Contractual Obligations in
Europe 269 (2009) ; S. Sanchez Lorenzo, “Choice of Law and Overriding Mandatory
Rules in International Contracts after Rome I”, 12 Ybk. Priv. Int’l L. 67 (2010) ;
M. Storme, “Freedom of Contract : Mandatory and Non-mandatory Rules in European
Contract Law”, 15 Eur. Rev. Priv. L. 233 (2007).
625. Rome I, Arts. 3 (3)-(4), 6 (2), 8 (1) (emphasis added). The “overriding”
mandatory rules are also known as “internationally mandatory” or “supermandatory”
rules, while the “simple” mandatory rules are sometimes referred to as “domestic” or
“internal” mandatory rules.
626. Rome I, Art. 3 (3). See also Rome I, Art. 3 (4), which provides that when
all other elements are located in one or more Member States, the parties’ choice of
applicable law other than that of a member state “shall not prejudice” the application
the mandatory rules of Community law.
627. See Austrian codif., Art. 41 ; Bulgarian codif., Arts. 95, 96 ; Estonian codif.,
Arts. 34 (1), 35 (1) ; German codif., Art. 2930 ; Lithuanian codif., Art. 1.39 ; Slovenian
codif., Arts. 21, 22.
628. See Dominican Repub. codif., Arts. 62, 63 ; FYROM codif., Arts. 25, 26 ;
Japanese codif., Arts. 11, 12 ; South Korean codif., Arts. 27, 28 ; Liechtenstein codif.,
Arts. 45, 48 ; Montenegrin codif., Arts. 42, 43 ; Puerto Rico draft codif., Arts. 35,
36 ; Quebec codif., Arts. 3117, 3118 ; Russian codif., Art. 1212 ; Serbian draft codif.,
Arts. 141, 142 ; Turkish codif., Arts. 26, 27 ; Ukrainian codif., Art. 45.
mandatory rules 629 because the former reflect a higher grade of public

policy 630, although both types of rules embody important public
interests.
In any event, outside the field of contract conflicts, the distinction
between the two categories of mandatory rules is inapplicable. This
is why other codifications or conventions covering other subjects do
not use the adjective “overriding” 631, even though mandatory rules, by
their nature, always override choice-of-law rules. As these codifications
provide, mandatory rules apply “directly” 632 and “irrespective of” 633,
“regardless of” 634, or “notwithstanding” 635 the law designated by the
codification’s choice-of-law rules.
For example, the Italian codification provides that its choice-of-law
rules “do not prejudice” those provisions of Italian law that, “because
of their object and purpose, are applicable irrespective of the reference
made to a foreign law” 636. Similarly, the Swiss codification provides for
the application of Swiss mandatory rules 637 but also authorizes the court
to “take into consideration” the mandatory rules of a law other than the
one designated as applicable by the codification “if the situation at hand
has a close connection to that law” 638.
629. See Rome I, Preamble, Recital 37 (“The concept of ‘overriding mandatory

provisions’ should be distinguished from the expression ‘provisions which cannot be
derogated from by agreement’ and should be construed more restrictively”).
630. Another difference is that in Rome I, the simple mandatory rules that can
defeat a contractual choice of law are : (a) those of the lex causae in consumer and
employment contracts (see Arts. 6.2 and 8.1) ; and (b) those of the country in which “all
other elements” of the situation are located, which may or may not be the lex causae, in
all other contracts (see Art. 3.3-4). By contrast, the “overriding” rules that may defeat
either a contractual or a judicial choice of another law, are those of the lex fori (Art. 9.2)
or the law of the place of performance, but only if they render performance unlawful
(Art. 9.3).
631. The only exception is Article 7 of the Dutch codification, which uses the
adjective “overriding” for all mandatory rules, without differentiating between
“overriding” and “simple” rules.
632. Chinese codif., Art. 5. See Y. Gan, “Mandatory Rules in Private International
Law in the People’s Republic of China”, 14 Ybk. Priv. Int’l L. 305 (2012-2013).
633. Rome I, Art. 9 (1) ; Rome II, Art. 16 ; Belgian codif., Art. 20 ; Dutch codif.,
Art. 7 ; FYROM codif., Art. 14 ; Italian codif., Art. 17 ; South Korean codif., Art. 7 ;
Serbian draft codif., Art. 40.1 ; Swiss codif., Art. 18.
634. Belarus codif., Art. 1100 (1) ; Kyrgyzstan codif., Art. 1174 (1) ; Lithuanian
codif., Art. 1.11 (2).
635. Bulgarian codif., Art. 46 (1) ; Venezuelan codif., Art. 10 ; Inter-American
Contracts Convention, Art. 11.
636. Italian codif., Art. 17.
637. See Swiss codif., Art. 18 (“The present statute does not prejudice those
mandatory provisions of Swiss law, which, in light of their particular purpose, are
applicable irrespective of the law designated by the present statute”).
The Russian codification provides that its choice-of-law rules “shall

not affect the applicability” of those “imperative norms” of Russian
law that,
“due to an indication in the imperative norms themselves or due to
their special significance, in particular for safeguarding the rights
. . . of participants in civil law relations, regulate the respective
relations regardless of the otherwise applicable law” 639.
The codification also provides that courts “may take into consideration”
the norms that another “closely related” country considers imperative 640.
Finally, the Belgian codification provides that its choice-of-law rules
“do not prejudice” the application of the “mandatory or public policy
rules” of Belgian law, which, “by virtue of the law or their manifest
purpose, are aimed to govern an international situation irrespective
of the law designated by the choice-of-law rules” 641. Additionally,
“effect may be given to the mandatory or public policy rules” of a state
with a “close connection” to the situation, if and insofar as “under the
law of [that] state, those rules apply irrespective of the law otherwise
applicable” pursuant to the codification’s choice-of-law rules 642.
C. Unilateralism in substantive statutes
1. “Localizing rules” : concept and function

Obviously, choice-of-law rules are found not only in PIL
codifications, but also in other statutes that regulate particular areas of
substantive law 643. Many of these statutes contain express provisions
639. Russian codif., Art. 1192 (1).

641. Belgian codif., Art. 20 (1).
642. Belgian codif., Art. 20 (2). For earlier discussion of Belgian law on these
issues, see A. Nuyts, “L’application des lois de police dans l’espace : Réflexions au
depart du droit belge de la distribution commerciale et du droit communautaire”, 88
Rev. critique dr. int’l priv. 31 (1999).
643. The English treatise Dicey and Morris classifies statutory choice-of-law
provisions into six non-exclusive categories as follows :
“(1) those which lay down a rule of substantive or domestic law without any
indication of its application in space ; (2) those which lay down a particular
or unilateral rule of the conflict of laws purporting to indicate when a rule of
substantive or domestic law is applicable ; (3) those which lay down a general or
multilateral rule of the conflict of laws purporting to indicate what law governs
a given question ; (4) those containing a limitation in space or otherwise which
restricts the scope of a rule of substantive or domestic law (self-limiting statutes) ;
(5) those which apply in the circumstances mentioned in the statute, even
declaring the statute’s applicability to multistate situations with certain

prescribed connections to the enacting state. For example, a Quebec
statute provides that traffic-accident victims domiciled in Quebec are
entitled to the administrative remedies and compensation the statute
provides, regardless of “whether the accident occurs in Québec or
outside Québec” 644.
These provisions are no different than unilateral choice-of-law rules,
except that they are embedded in special substantive statutes rather
than in choice-of-law codifications. In any event, to avoid confusion,
we refer to these provisions as “localizing rules” and the statutes that
contain them as “localized statutes” 645. Under standard principles of
statutory interpretation (e.g., the principle lex specialis derogat legi
generali), these more specific statutes override the rules of a choice-of-
law codification, which usually have a general and residual character.
Many localized rules also qualify as mandatory rules, or rules of
immediate or necessary application. The difference is that a localizing
provision expressly declares its applicability to a particular multistate
situation and, for this reason, it displaces a choice-of-law rule without
the need to determine whether the provision reflects an important
public interest. By contrast, a rule that embodies a significant public
interest may qualify as a mandatory rule even if it does not contain
language declaring its applicability to a particular multistate situation.
Put another way, localized statutes and mandatory rules have the same
operative effect of displacing choice-of-law rules, but localized statutes
do so because of their express wording and without the need to examine
whether they embody a high level of public policy. Mandatory rules, on
though they would not be applicable under the normal rules of the conflict of
laws (overriding statutes) ; and (6) those which do not apply in the circumstances
mentioned in the statute, even though they would be applicable under the normal
rules of the conflict of laws (self-denying statutes)”. L. Collins, Dicey, Morris and
Collins on the Conflict of Laws 19 (15th ed., 2012).
See also ibid. (noting that “[o]nly statutes in categories (2) and (3) above deal expressis
verbis with the conflict of laws ; the rest do not”).
644. Quebec Automobile Insurance Act, § 7. For similar Quebec statutes covering
other fields, see Act Respecting Industrial Accidents and Occupational Diseases, §§ 7, 8 ;
Act Respecting Labour Standards, § 2.
645. Another term for the same concept is “spatially conditioned substantive rules.”
See A. Nussbaum, Principles of International Law 69-73 (1943) ; K. Lipstein, Principles
of the Conflict of Laws National and International 99 et seq. (1981) ; B. Audit and
L. d’Avout, Droit international privé 107 (“règles substantielles auto-limitées”). See
also M. Fallon, “Les règles d’applicabilité en droit international privé”, in Mélanges
offerts à Raymond Vander Elst, 285 (Vol. 1, 1986) ; F. Rigaux, “Les règles de droit
délimitant leur propre domaine d’ application”, Annales de droit de louvain 285 (1983).
the other hand, qualify as mandatory only if they embody a high level
of public policy.
Localizing rules are also found in the statutes of states that, like most
states of the United States, do not have a choice-of-law codification. In
these states, the localized statutes pre-empt the judicial choice-of-law
process, which usually follows the multilateral method.
2. Consumer contracts

A plethora of EU Directives require member states to accord
consumers a specified level of substantive-law protection, and
“to ensure that the consumer does not lose the protection granted
by th[ese] Directive[s] by virtue of the choice of law of a non-
Member country as the law applicable to the contract if the latter
has a close connection with the territory of the Member States” 646.
The quoted localizing provision is from Council Directive 93/13/
EEC of 5 April 1993 on Unfair Terms in Consumer Contracts, but other
EU Directives also contain almost identical provisions, including :
Directive 2008/48/EC on credit agreements for consumers 647 ; Directive
97/47/EC on time-sharing contracts 648 ; Directive 97/7/EC on distance
contracting 649 ; Directive 1999/44/EC on the sale of consumer goods
and associated guarantees 650 ; and Directive 2000/31/EC on electronic
commerce 651.
646. Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer

Contracts 1993 OJ (L 95).
647. See Council Directive 93/13/EEC, Art. 22 (4) (“Member States shall take the
necessary measures to ensure that consumers do not lose the protection granted by this
Directive by virtue of the choice of the law of a third country as the law applicable to
the credit agreement, if the credit agreement has a close link with the territory of one
or more Member States”).
648. See Council Directive 93/13/EEC, Art. 9 (“Member States shall take the
measures necessary to ensure that, whatever the law applicable may be, the purchaser
is not deprived of the protection afforded by this Directive, if the immovable property
concerned is situated within the territory of a Member State”).
649. See Council Directive 93/13/EEC, Art. 12 (2) (“Member States shall take the
measures needed to ensure that the consumer does not lose the protection granted by
this Directive by virtue of the choice of the law of a non-member country as the law
applicable to the contract if the latter has close connection with the territory of one or
more Member States”).
650. See Council Directive 93/13/EEC, Art. 7 (2) (“Member States shall take
the necessary measures to ensure that consumers are not deprived of the protection
afforded by this Directive as a result of opting for the law of a nonmember State as
the law applicable to the contract where the contract has a close connection with the
territory of the Member States”).
651. See Council Directive 2000/31, Arts. 3, 8, of 8 June 2000 on electronic
commerce (EC).
When an EU state implements these Directives, that state adopts

similar localized statutes. For example, in implementing the above-
quoted Directive, the United Kingdom enacted the Unfair Contract
Terms Act, which applies “notwithstanding any contract term which
applies or purports to apply the law of any country outside the United
Kingdom” 652. Likewise, the Polish codification provides that a
contractual choice of the law of a state that is not a member of the
European Economic Area, in a contract bearing a “close connection
with at least one member state”, may not deprive a consumer of the
protection provided by the provisions of Polish law that implement the
above-listed EU Directives 653.
Many other countries, as well as states of the United States, have
enacted similar localized statutes for consumer protection. For example,
an Indiana statute requires the application of Indiana law to consumer
credit transactions with certain connections to that state and prohibits a
contractual choice of another state’s law 654.
3. Insurance contracts

A Nevada statute applies to “(1) All insurers authorized to transact
insurance in this state ; (2) All insurers having policyholders resident
in this state ; [and] (3) All insurers against whom a claim under an
insurance contract may arise in this state.” 655 Many other states have
similar statutes 656, of which several expressly prohibit the contractual
652. Unfair Contract Terms Act, 1977, § 27 (2).

653. Polish codif., Art. 30.
654. See Ind. Code, § 24-4.5-1-201. For similar statutes in other states, see, e.g., La.
Rev. Stat., Ann., §§ 9 :3511, 9 :3563, 51 :1418.
655. Nev. Rev. Stat., § 696B.020 (emphasis added).
656. For example, a Texas statute provides :
“Any contract of insurance payable to any citizen or inhabitant of this State by
any insurance company . . . doing business within this State shall be . . . governed
by [the laws of this State] notwithstanding such . . . contract . . . may provide that
the contract was executed and the premiums . . . should be payable without this
State.” Tex. Ins. Code Ann. § 21.42.
A North Carolina Statute provides :
“All contracts of insurance on property, lives, or interests in this State shall
be deemed to be made therein, and all contracts of insurance the applications for
which are taken within the State shall be deemed to be made within this State and
are subject to the laws thereof.” N.C. Gen. Stat. § 58-3-1.
A Wisconsin statute provides that
“Every insurance against loss or destruction of or damage to property in this
state or in the use of or income from property in this state is governed by the law
of this state.” Wis. Stat., § 632.09.
choice of another state’s law. For example, an Oregon statute provides

that, for an insurance policy “delivered or issued for delivery in”
Oregon, any “condition, stipulation or agreement requiring such policy
to be construed according to the laws of any other state or country . . .
shall be invalid” 657.
Another Oregon statute provides that, in cases of insurance for
environmental contamination, Oregon law “shall be applied in all cases
where the contaminated property to which the action relates is located
within the State of Oregon” 658. The statutes of other states also require
the application of forum law to cases arising from trans-boundary
pollution within the forum state 659.
Within the European Union, Directive 2009/103/EC on motor
vehicle insurance requires each EU member state to provide a certain
level of protection for insureds, victims of traffic accidents, and the
public for vehicles normally based in its territory. Article 7 of the
Directive also requires each member state to ensure that vehicles
from third countries shall not be used in its territory, unless they are
insured for the minimum liability coverage required by the Direc-
tive.
4. Employment contracts
In the United States, every state’s worker’s compensation statute

contains provisions authorizing its extraterritorial application to injuries
sustained outside the forum state, if the employee, or employment
relationship, has certain connections with the forum state 660.
For other similar statutes, see Minn. Stat, § 60A.08(4) (“All contracts of insurance on
property, lives, or interests in this state, shall be deemed to be made in this state”) ;
Colo. Rev. Stat., § 10-4-711 ; Fla. Stat., § 627.727 ; Okla. Stat. tit. 36, § 3636 ; La. Rev.
Stat., Ann., §§ 22 :611, 22 :655, 22 :1406(D).
657. Or. Rev. Stat., §§ 742.001, 742.018. For similar statutes, see, e.g., La. Rev.
Stat., Ann., § 22 :629 ; Tex. Ins. Code Ann., § 21.42.
658. Or. Rev. Stat., § 465.480 (2) (a). The statute continues : “Nothing in this
section shall be interpreted to modify common law rules governing choice of law
determinations for sites located outside the State of Oregon.”
659. See, e.g., Mich. Comp. Laws, § 324.1804 (“The law to be applied in an action
or other proceeding brought pursuant to this part, including what constitutes ‘pollution’
is the law of this state, excluding choice of law rules”). For identical provisions, see
Colo. Rev. Stat., §§ 13‑1.5‑104, 51-351b ; NJ Stat. Ann., § 2A :58A-5 ; Wis. Stat.,
§ 299.33 (4).
660. See, e.g., Ala. Code, § 25-5-35 ; Ariz. Rev. Stat., § 23-904 ; Cal. Lab. Code,
§ 3600.5 ; Ind. Code, § 22-3-2-20 ; Ga. Code Ann., § 34-9-242 ; Ky. Rev. Stat., Ann.,
§ 342.670 ; La. Rev. Stat., Ann., § 23 :1035.1 ; Md. Code Ann. Lab. and Empl., § 9-203 ;
Okla. Stat. tit. 85, § 4 ; Tenn. Code Ann., § 50-6-115 ; Tex. Code Ann., § 406.071.
In the European Union, there is a similar interplay between employee-

protecting EU Directives and implementing national legislation, as
described above, with regard to consumers. The anti-discrimination
provisions of the United Kingdom’s Employment Rights Act, for
example, apply to UK employees regardless of the law applicable to
the employment contract 661. A Spanish statute provides that Spanish
employment law applies to Spanish workers working abroad who were
hired in Spain by Spanish employers 662. Similarly, a Greek statute
provides that in individual employment contracts concluded by Greek
employees working in Asia or Africa, the contractual choice of a foreign
law is valid only if it is more favourable to the employee than Greek
law, and that the clauses regarding salary and working conditions must
provide at least the same level of protection as mandated by Greek
law 663.
Finally, the Russian Labour Code provides that it and other Russian
labour-law rules apply “mandator[ily] . . . in the whole Russian
Federation territory for all employers” and “shall cover labour relations
of foreign nationals” 664.
5. Franchise, distributorship, and commercial agency contracts

Localized statutes protecting franchisees, distributors, and commer-
cial agents are also quite common. For example, an Iowa statute
mandates the application of forum law to franchises operated in that
state 665, prohibits a contractual choice of another state’s law 666, and
provides that a contractual choice of Iowa law does not alone render
that statute applicable 667. Other states have enacted similar statutes 668.
A Belgian statute provides that Belgian law governs the sanctions
for a unilateral breach of a distribution agreement of unlimited duration
covering Belgian territory 669. A Portuguese statute provides that the
661. See Employment Rights Act 1996, § 204 (1).

662. See Art. I.4 of the Spanish Workers Statute.
663. See Greek Law No. 1429/1984, Art. 2 (1).
664. Labour Code of the Russian Federation of 31 December 2001 (Federal Law
No. 197-FZ of 2001). For critical discussion (“excessive imposition of the lex fori”),
see Basedow, “Open Societies”, 387-388.
665. See Iowa Code, § 523H.2.
668. See, e.g., Minn. Stat., §§ 80C.21, 325.064, 325.064 (for franchises, farm
equipment dealerships, and heavy equipment dealerships, respectively).
669. See Law of 27 July 1961, discussed in J. Erauw and M. Fallon, “Flexibility
and Conflict Justice in the Belgian Code of Private International law”, in Belgische
termination of an agency contract to be performed exclusively or

primarily in Portugal may be governed by foreign law only if that law
is more favourable to the agent than Portuguese law 670.
6. Other contracts
A Louisiana statute requires the application of forum law to

construction contracts to be performed in Louisiana, and prohibits the
contractual choice of another state’s law 671.
Australia’s Carriage of Goods by Sea Act provides that all parties to
a sea carriage document relating to the international carriage of goods
from any place in Australia “are taken to have intended to contract
according to the laws in force at the place of shipment”. Additionally,
the Act prohibits the contractual choice of a non-Australian law. The
Act also prohibits the choice of a non-Australian forum for trips to
and from Australia 672. Argentina’s Navigation Act provides that its
provisions on a carrier’s liability toward the passenger apply to any
contract for the carriage of passengers by water, if the contract is made
in Argentina or the trip begins or ends in an Argentinian port 673. The
Uruguayan Commercial Code applies to a charter contract involving a
foreign vessel, even if the contract was made elsewhere, as long as it
involves performance in Uruguay 674.
7. Antitrust
Judges in the United States, the European Union, and other states have
interpreted their respective antitrust laws as reaching anticompetitive
conduct that occurs abroad and is intended to and does have detrimental
effects within their territories 675. Some states have expressly adopted
this “effects doctrine” in their antitrust legislation. For example :
bijdragen tot het Wereldcongres voor Rechtsvergelijking in Washington DC 2010, 229,

254 (2011).
670. See Article 38 of the Decreto-Lei No. 178/86, of 3/7/1986.
671. See La. Rev. Stat., § 9 :2779. See also La. Rev. Stat., §§ 9 :2778, 38 :2196
(which does the same with regard to contracts involving the state and its agencies or
subdivisions).
672. Australian Carriage of Goods by Sea Act, 1991 (Cth), § 11.
673. Argentina’s Navigation Act 20.094 (1973), Art. 604.
674. See Article 1270 of the Uruguayan Commercial Code.
675. See, e.g., Hartford Fire Ins. Co. v. California, 509 US 764 (1993) ; F. Hoffman-
La Roche Ltd. v. Empagran S.A., 542 US 155 (2004) ; European Court of Justice, Joined
Cases 89/85 (Åhlström Osakeyhtiö v. Commission – “Wood Pulp”), of 27 September
1988, ECR 5193, 5233 (1988).
– Germany’s Act against Restraints of Competition applies “to all

restraints of competition having an effect [in Germany], even if they
were caused outside [Germany]” 676 ;
– the United Kingdom’s Competition Act of 1998 applies to an anti-
competitive “agreement, decision or practice [that] is, or is intended
to be, implemented in the United Kingdom” and “may affect trade
within the United Kingdom” 677 ;
– South Korea’s Capital Market Integration Act applies extraterritorially
to acts abroad that produce detrimental effects in South Korea 678 ;
and
– Spain’s Unfair Competition Law applies to any acts of unlawful
competition, wherever committed, which actually produces or may
produce substantive effects on the Spanish market 679.
Section 5. Symbiosis
A. Unilateralism is alive and kicking
To paraphrase Mark Twain, the rumours of unilateralism’s demise

have been greatly exaggerated. As the survey in the above section
documents, unilateralism is very much “alive”, certainly not as “well”
as in the statutists’ time, but alive and kicking – and not only in the
United States. Specifically :
(1) There is hardly any choice-of-law codification, among those
enacted in the last 50 years, that does not contain some unilateral
choice-of-law rules ;
(2) There is almost no country in which mandatory rules do not
enjoy priority over choice-of-law rules (bilateral or unilateral) ;
and
(3) There is no country that does not have localizing rules interspersed
in substantive statutes mandating the application of those statutes
to an increasing range of multistate cases.
676. German Act against Restraints of Competition, § 130 (2), available at http ://
www.bundeskartellamt.de/SharedDocs/Publikation/EN/Others/GWB.pdf ?_
blob=publicationFileandv=3 .
677. UK Competition Act 1998, c. 41, § 2 (1), (3), available at http ://www.
legislation.gov.uk/ukpga /1998/41/section/2 .
678. See Article 2 of the South Korean Act concerning Capital Market and Financial
Investment Business Act, of 4 February 2009.
679. See Article 4 of Act 3/1991 of 10.01.1991 on Unfair Competition.
Indeed, as Frank Vischer noted, “All systems contain a selection or

mixture of [unilateralism and bilateralism].” 680
The survey also demonstrates the inaccuracy of an often-unspoken
assumption that these rules are employed only in public-law fields,
such as antitrust. They are also employed in traditional private-law
fields, including contracts, marriage, divorce, maintenance, property,
and successions. Moreover, they protect not only economic interests
of the enacting state, but also certain strongly-held societal values and
beliefs 681. For example, ensuring equality in marriage or facilitating
divorce, as some of these rules do, does not protect an economic interest
but promotes that society’s sense of equality and freedom to marry.
None of these findings should come as a surprise. Unlike academic
authors, who have the luxury of theorizing about the way the world
ought to be, legislators must deal with the world as is. They are obligated
to protect the interests and values of the society they represent, and
unilateral rules are the most precise and effective tool for doing so.
B. Methodological implications : from antagonism to symbiosis

The proliferation of unilateral rules over the last 50 years has resulted
in a perceptible change in the PIL landscape. Multilateralism is no
longer the sole actor – it shares the stage with unilateralism. If nothing
else, this co-existence proves that multilateralism and unilateralism
are not as antithetical or mutually exclusive as some authors claim 682,
certainly not in the real world of legislation. As a European author
recently acknowledged, “[T]he unilateral islands in the sea of
multilateral international private law have grown in the last years.” 683
Unilateralism now occupies a respectable position, side by side with
multilateralism, as a mainstream method of resolving conflicts of laws.
680. F. Vischer, “General Course”, 32 (emphasis added) (“Unilateralism and

bilateralism are the two basic concepts and the two mainstreams of conflicts theories.
All systems contain a selection or mixture of these approaches”).
681. See, e.g., Basedow, “Open Societies” 422 (“[T]he determination of States to
enforce their own laws within the territorial limits of their jurisdiction is not confined
to commercial transactions and monetary matters. Such provisions can be found in
other areas of the law, too, where the roots can be traced back to the moral and ethical
foundations of prevailing views in a society”).
682. See, e.g., F. Juenger, “A Third Conflicts Restatement ?”, 75 Ind. LJ 403, 410
(2000) (“[U]nilateralism and multilateralism are antithetical.”). But see F. Vischer,
“General Course”, 22 (“Unilateralism and bilateralism have always been combined.
Especially multilateral systems are complemented with unilateral elements”).
683. G. Rühl, “Unilateralism”, in J. Basedow, K. Hopt and R. Zimmermann (eds.),
Max Planck Encyclopedia of European Private Law (2012).
As the preceding discussion illustrates, there is now ample evidence

of a de facto co-existence and even amalgamation between the two. In
fact, what distinguishes this era from previous periods in PIL history
is that the relation between multilateral and unilateral approaches is
not as antagonistic as it once was. Rather, they co-exist peacefully and
complement each other.
This co-existence is more pervasive in the United States, where
multilateralism and unilateralism jointly inhabit the confines of several
modern choice-of-law approaches, and where localized, unilateral state
statutes are commonplace. After more than a century of domination,
Joseph Story’s multilateral method met an impasse in the hands of one
of his successors, Joseph Beale. Moving to the other extreme, Brainerd
Currie proposed his unilateral method as a wholesale substitute, but
it too encountered hurdles, especially in tackling true conflicts and
the no-interest conundrum. Currie ultimately lost the war against
multilateralism, but succeeded in influencing other approaches into
adopting significant elements of his unilateralist approach.
In other countries, too, unilateralism has survived as a complement
to, not a substitute for, multilateralism. The resulting blend of the two
methods may be less conspicuous than in the United States, but as
this chapter demonstrates, it is very real. For example, Celia Fassberg
applauds the contribution of the European unilateralist literature in
“recognize[ing] the importance of policy in private law and the difficulty
of determining its application in a formal, abstract, evenhanded way”
and in “develop[ing] a political foundation for identifying situations
in which it might be justified to abandon multilateral choice rules and
require application of forum law alone” 684. In turn, these developments
“paved the way towards a reconceptualization of choice of law
as a process, which, rather than rejecting multilateral egalitarian
choice rules altogether, simply delays their application : they are
brought into effect only after legitimate local concerns have been
exhausted” 685.
Ted de Boer similarly concludes that :
“[C]ontemporary conflicts law is not impervious to the influence
of unilateralist theories. Legislative intent does play a part in the

and Out with a Whimper”, 163 U. Pa. L. Rev. 1919, 1936 (2015).
685. Ibid.
choice‑of‑law process where the spatial reach of forum law is

delineated in a unilateral choice-of-law rule, or where policies
and interests must be assessed under the doctrine of overriding
mandatory rules or pursuant to policy-oriented choice-of-law
considerations.” 686
These examples of unilateralism’s resilience suggest that uni-
lateralism will be with us for the foreseeable future. Rather than
ignoring this reality, academic writers can help shape its development
by using their persuasive powers to steer legislatures and courts toward
a non-parochial use of unilateralism. A preliminary step in that direction
would be to view this symbiosis of multilateral and unilateral methods
as a sign of maturity, rather than as a “step backwards . . . towards a
medieval neo-statutism” 687.
C. Unilateralism and parochialism

One can object to unilateralism on several grounds, but some
objections are based on obsolete or inaccurate assumptions, such as that
the unilateral method is mechanical, or that unilateralism is tantamount to
parochialism. The first assumption derives from the fact that the original
unilateral method of the Italian statutists was based on a mechanical
classification of statutes into real and personal. However, this deficiency
in interpretative technique was partly cured by the seventeenth century,
before the advent of the multilateral approach, thanks to De Coquille’s
call for a teleological interpretation of statutes 688. In any case, this
deficiency is not characteristic of modern unilateralist methods like
Currie’s. One can criticize his method on many grounds, but not for
being mechanical. Currie’s approach is based on a sophisticated, albeit
biased, teleological method of statutory interpretation.
The parochial bias of Currie’s approach 689
gives credence to
the second assumption, that unilateralism is necessarily parochial.
686. T. M. de Boer, “Living Apart Together”, at 205.

687. M. Martinek, “The Seven Pillars of Wisdom in Private International Law :
The German and the Swiss Experience with the Codification of Conflicts Law Rules”,
Chinese Ybk. Priv. Int’l L. & Comp. L. 15, at para. 5.1 (2001) available at http ://
archiv.jura.uni-saarland.de/projekte/Bibliothek/text.php ?id=221#fnB52 (hereinafter
Martinek, “Seven Pillars”) (characterizing what he calls “the political school of private
international law” – i.e., American-style interest analysis – “as a step backwards into
the direction of a destructive politisation and towards a medieval neo-statutism”).
689. See supra, Chap. IV.2. For Ehrenzweig’s forum bias, see Hay, Borchers and
Symeonides, 41-45.
Nevertheless, although unilateralism and parochialism tend to travel

together, they travel just as well separately. Parochialism is neither
inseparable from unilateralism, nor antithetical to multilateralism. For
instance, Leflar’s better-law approach is multilateral in appearance 690
but can be parochial in its operation, if judges routinely conclude that
forum law is better in applying that approach 691. Conversely, although
a strong partiality for the forum’s interests was central in Currie’s
own thinking, that partiality is severable from the remainder of his
basic analysis. Many cases employing interest analysis demonstrate
that, in the hands of enlightened judges, even Currie’s approach can
shed its pro-forum bias 692. Other American approaches, such as those
of von Mehren and Trautman 693, and, to a lesser extent, comparative
impairment 694, illustrate that one can adopt some of unilateralism’s
basic postulates (such as inquiring into state interests, “concerns”, or
“impairments” before choosing the applicable law) without falling into
the pit of parochialism.
In fact, one can argue that by inquiring into the interest of both
the forum and the foreign state before choosing the applicable law,
unilateralism has the potential to be more solicitous of foreign interests
than a multilateral system, which chooses that law a priori, based
solely on the forum’s assumptions. Although Currie’s method scorned
this potential, other unilateral methods (both before and after Currie)
have not done so. For example, as noted earlier, the statutists did not
oppose the application in foro of a foreign personal statute 695.
Frank Vischer, the principal drafter of the Swiss PIL codification,
was not himself a unilateralist, but he provided three reminders that can
help dispel the impression that unilateralism as a method is necessarily
parochial :
690. See infra, Chap. VI.3.B.2.

691. For evidence to this effect, see Symeonides, Revolution, at 82-83.
692. See, e.g., People v. One 1953 Ford Victoria, 311 P. 2d 480 (Cal. 1957)
(California court applying Texas law, which favoured a Texas mortgagee at the expense
of a California state entity) ; Bernkrant v. Fowler, 360 P. 2d 906 (Cal. 1961) (California
court applying Nevada law, which favoured a Nevada claimant at the expense of a
California estate) ; Eger v. Du Pont DeNemours Co., 539 A. 2d 1213 (NJ 1988)
(applying South Carolina law, which favoured a foreign defendant at the expense of a
forum plaintiff) ; Kaiser-Georgetown Comm. Health Plan, Inc. v. Stutsman, 491 A. 2d
502 (DC 1985) (applying forum law, which favoured a foreign plaintiff at the expense
of local defendants).
693. See A. von Mehren and D. Trautman, The Law of Multistate Problems (1965).
694. See W. F. Baxter, “Choice of Law and the Federal System”, 16 Stan. L. Rev. 1
(1963).
(1) “The unilateral method is not identical with the mere use of

unilateral conflict rules” 696 ;
(2) “Unilateralism . . . has both and internal and external side” 697 ; and
(3) “[U]nilateralism in its external extension . . . would allocate and
attribute legislative competence of different States in a neutral way
and would not impose conflicts solutions of the forum when the lex
fori does not apply.” 698
Indeed, unilateralism as a judicial method of conflicts resolution is
inherently flexible, and this flexibility allows it to avoid parochialism.
Legislative unilateralism also has the same potential ; it does not
have to be, and often is not, a one-way street. First, while it is true
that inward-looking (or internal) unilateral rules protect the enacting
state’s interests and values, one should not overlook the existence
of outward-looking (or external) unilateral rules. The most common
example from the latter category are rules that authorize the application
of foreign mandatory rules. As noted earlier, the majority (indeed, two-
thirds) of the codifications that have sanctioned the concept of règles
d’application immédiate have also authorized the application of the
mandatory rules of a third state (i.e., other than the states of the lex fori
or the lex causae) 699. Jürgen Basedow calls this phenomenon “reverse
unilateralism” and notes “the growing inclination of the international
community to take into account the imperative norms of other States” 700.
Second, some of the states that have enacted inward-looking unilateral
rules have paired them with mirror-like outward-looking unilateral rules.
For example, the Louisiana codification contains several such pairings
such as Articles 3525-3527 on matrimonial regimes and Articles 3533-
3534 on successions 701. Likewise, Swiss codification offers an example
of a double pairing. Articles 90 and 91 of the Swiss codification consist
of four unilateral rules designating the law governing the succession of :
(1) Swiss citizens domiciled in Switzerland (Art. 90.1) ; (2) foreigners
domiciled in Switzerland (Art. 90.2) ; (3) foreigners domiciled abroad
(Art. 91.1) ; and (4) Swiss citizens domiciled abroad (Art. 90.2). The
four rules provide different choices to testators in each category, and
696. F. Vischer, “General Course”, 36.

697. Ibid., at 37.
698. Ibid., at 42.
699. See supra, Chap. V.4.B.
700. Basedow, “Open Societies”, 470. See also ibid., at 459 (noting “a growing
deference to foreign legislation designed to protect national cultural heritage”)
701. See supra, Chap. V.4.A.13 ; Symeonides, “Les grands problèmes”, at 260-263.
together produce a carefully-crafted, sophisticated scheme that bilateral

rules could not achieve. These and other examples illustrate that the
unilateral technique is a high-precision tool that facilitates the drafting
of more focused and nuanced rules than the bilateral technique.
Third, one should keep in mind that an inward-looking unilateral rule
does not operate in isolation. Even when not paired with a corresponding
outward-looking unilateral rule, it is surrounded by multilateral rules. For
example, Article 3545 of the Louisiana codification contains an inward-
looking unilateral rule in its first paragraph, calling for the application
of forum law to products liability cases with certain connections to the
forum state. The second paragraph provides a foreseeability exception
and the third paragraph provides that “[a]ll cases not disposed of by the
preceding paragraphs are governed by the other Articles of the [torts]
Title” 702. The latter articles consist of bilateral rules, most of which
provide the court with ample, yet guided, discretion in choosing the
applicable law 703. Again, the use of the unilateral technique allows the
drafter to precisely delineate the reach of forum law without prejudging
the reach of foreign law, and to do so in a non-parochial fashion 704.
Finally, even when an inward-looking unilateral rule is not paired
with a corresponding outward-looking rule, nor complemented by a
bilateral rule, the result is not necessarily parochialism. For example,
a rule such as Article 3 of the French Code civil – which provides that
forum law governs torts committed in the forum’s territory – does not
foreclose (indeed, it suggests) the possibility of applying foreign law
to torts committed outside the forum. Rather, the rule relegates those
torts to the judicial case-by-case resolution, which may or may not be
parochial and can lead to a judicial “bilateralization” of the rule, as it
has in France and Germany 705.
Another example is the above-quoted Oregon statute, which mandates
the application of Oregon law to insurance conflicts arising from
702. La. Civ. Code, Art. 3545 (3).

703. One of these articles, Article 3547, contains an escape clause that can displace
even the unilateral rule in the first paragraph of Article 3545. For a detailed discussion
of this scheme and its rationale, see S. Symeonides, “Problems and Dilemmas in
Codifying Choice of Law for Torts : The Louisiana Experience in a Comparative
Perspective”, 38 Am. J. Comp. L. 431, 464-469 (1990) ; S. Symeonides, “Louisiana
Exegesis”, at 749-757.
704. The Oregon and Puerto Rico codifications follow the same combination of
unilateral and multilateral rules. See Or. Rev. Stat., § 15.435 ; Puerto Rico draft codif.,
Art. 42.
705. See B. Audit and L. d’Avout, Droit international privé 171-172 (6th ed., 2010) ;
F. Vischer, “General Course”, 38.
contaminated environmental sites located in Oregon 706. That statute

does not address the question of which law applies to non-Oregon sites.
Instead, it states that, “Nothing in this section shall be interpreted to
modify common law rules governing choice of law determinations for
sites located outside the State of Oregon.” 707 Thus, the statute wisely
preserves the use of the ordinary choice-of-law process for non-forum
sites and, with it, the courts’ freedom to apply either forum law or
foreign law, depending on all of the pertinent choice-of-law factors in
the particular case.
D. The unilaterality of multilateralism

In contrast to unilateralism’s negative reputation, multilateralism
has enjoyed a positive image from the very beginning. In large part,
this was a result of the stature of its founder, the great Savigny. His
goal of international decisional harmony regardless of forum, and of
evenhanded treatment of forum law and foreign law, were laudable
and intuitively appealing. The same was true of his notion of applying
the law of the state where each legal relationship has its seat or where
“in its proper nature, it belongs” 708. But the important questions are
not only how to decide where each relationship belongs, but also who
should decide. Savigny’s hopes for an international consensus never
materialized and, in the absence of a supranational legislature, each
state claimed for itself the task of unilaterally enacting bilateral rules
for assigning a seat to each relationship.
Herein lies the de facto unilaterality of multilateralism. Multi-
lateralism purportedly aspires to international decisional harmony, yet
leaves each state to define it and to choose the means of pursuing
it. It mildly admonishes the forum to respect the interests of other
states, but by generally disfavouring renvoi, it does nothing specific to
encourage consideration, much less accommodation, of those interests.
It is supposed to be a forum-neutral system, but in reality is more of
a forum-knows-best system. For example, when the forum adopts a
bilateral rule such as the lex loci contractus, the forum assumes that the
law of the state in which a contract was made is the most appropriate
706. Or. Rev. Stat., § 465.480 (2) (a) (providing that, in cases of insurance for
environmental contamination, Oregon law “shall be applied in all cases where
the contaminated property to which the action relates is located within the State of
Oregon”).
707. Ibid.
law to govern all disputes arising from that contract, even if that state
holds the view that its law is the least appropriate. Indeed, except in
the limited circumstances in which it allows renvoi, multilateralism is
totally indifferent to the views of states other than the forum 709.
Moreover, unilateralism’s failure to consider the content of the
involved state’s laws, and its concomitant refusal to recognize the
concept of false conflicts, sometimes leads to absurd and artificial
results. To illustrate this phenomenon, let us examine how modern
PIL codifications resolve tort conflicts in which both the tortfeasor and
victim are domiciled in (or have a similar affiliation with) one state, but
the tort occurs in another state. Nearly two-thirds of the codifications
enacted in the last 50 years (49 out of 75), including Rome II, apply the
law of the parties’ common domicile (the “common-domicile rule”) 710.
One might assume that this rule is based on the realization that
these cases present the false conflict paradigm, in which only the state
of the common domicile has an interest in the application of its law.
However, the rationale for the rule is entirely different. It is based not
on the content of the involved state’s laws, but rather on the notion of
the “closest connection” (or so-called proximity principle), a modern
iteration of Savigny’s seat of the relationship. In these cases, the seat of
the relationship is in the state of the parties’ common domicile. This is
not an inherently unsound idea, but the exclusive reliance on physical
contacts, and the failure to consider the content of the law of the contact
states, causes the rule to be too narrow in some cases and too broad in
others.
The rule is too narrow in that it applies only when the parties are
domiciled in the same state, but not when they are domiciled in different
states that have the same laws. The following example illustrates the
difference. Suppose that, while hunting in Kenya, a French hunter
injures a Belgian hunter with whom he has no pre-existing relationship.
Suppose that French and Belgian law provide the same amount of
compensation, an amount much higher than that provided by Kenyan
law. For a modern unilateralist, there is no reason to apply Kenyan
709. Additionally, in some cases the neutral bilateral rules (of which multilateralism
prides itself) may conceal deliberate policy choices designed to promote the
forum’s national interest. For examples see Symeonides, Codifying Choice of Law,
at 329-332.
710. See Symeonides, Codifying Choice of Law, at 72-80 (documenting that 47
of the 73 codifications dealing with tort conflicts have adopted a common-domicile
rule. After the publication of that book, two more states, the Dominican Republic and
Montenegro, adopted the same rule, raising the total to 49).
law in this case, and every reason to apply either Belgian or French
law. This is a classic false conflict, because : (1) Kenya has no interest
in applying its low recovery law to a dispute between foreigners ;
(2) Belgium has every interest in applying its high recovery law for the
protection of the Belgian victim ; and (3) France has no countervailing
interest because its law provides for the same recovery as Belgian
law. Even so, due to the aversion of many codification drafters to the
concept of false conflict, resulting from their unwillingness to consider
the policies of the involved states’ laws, this conflict would be resolved
under Kenyan law. Because the parties are not domiciled in the same
state, this case falls outside the scope of the common-domicile rule and
is instead governed by the lex loci delicti rule, which remains the basic
rule in all of these codifications. Although some of these codifications,
such as Rome II, contain exceptions to the lex loci delicti rule, none
of these exceptions would be operable in this case 711. By contrast, the
codifications of Louisiana, Puerto Rico, and Oregon treat this case as
analogous to a common-domicile case, though without using the term
false conflict. For example, the Oregon codification provides that
“persons domiciled in different states shall be treated as if domiciled in
the same state to the extent that the laws of those states on the disputed
issues would produce the same outcome” 712.
At the same time, the common-domicile rule, as formulated in
Rome II and all other codifications (except the three aforementioned
American codifications), is too broad. The rule covers not only cases
in which the disputed issue is not one of loss distribution (such as the
amount of compensation in the above hypothetical), but also cases
in which the only disputed issue is one of conduct regulation (such
as the applicable standard of care at the place of the tort). This is a
serious defect, and the reason for it is, again, multilateralism’s failure to
consider the content and policies of the conflicting laws. A modification
of the above hypothetical illustrates this problem. Suppose that both
hunters are French citizens and domiciliaries, but the only disputed
issue is whether the alleged tortfeasor was negligent. Should French law
711. For discussion of this issue, see S. Symeonides, “Rome II and Tort Conflicts : A
Missed Opportunity”, 56 Am. J. Comp. L. 173, 196-206 (2008).
712. Or. Rev. Stat., § 15.440 (2) (b). See also La. Civ. Code, Art. 3544 (1) (“Persons
domiciled in states whose law on the particular issue is substantially identical shall be
treated as if domiciled in the same state”) ; Puerto Rico draft codif., Art. 41 ; American
Law Institute, Complex Litigation : Statutory Recommendations and Analysis, §§ 6.01
(c) (2), (3) (1994).
apply to this issue ? Do French hunting laws travel with French hunters
wherever they go ? The old statutists would have classified these laws as
territorial (real) and would have answered this question in the negative.
But modern multilateralists, who tend to ridicule the statutists, do not
bother to ask this question. Consequently, they adopt geographical, all-
encompassing rules that would mandate the application of French law
to this issue, a patently absurd result.
Can multilateralism avoid this absurdity ? Yes. One way is to phrase
the common-domicile rule narrowly, to confine it to issues of loss-
distribution as opposed to conduct regulation 713, and to apply the lex
loci delicti to the latter issues. Another way would be to subject the rule
to a carefully crafted, content-sensitive escape clause allowing the court
to avoid the application of the common-domicile rule when the disputed
issue is one of conduct regulation. Unfortunately, a good number
of these codifications do not permit any exceptions 714. Many other
codifications, including Rome II, subject the common-domicile rule to
a closer-connection exception ; but, as explained in detail elsewhere,
this exception is not easy to employ 715. Article 17 of Rome II and
other codifications provide a more promising exception by authorizing
the consideration, but not necessarily application, of the rules of
“conduct and safety” of the place of conduct. However, this exception,
at least as formulated in Rome II, would be equally unhelpful in most
cases 716.
Thus, in cases such as those discussed above, multilateralism’s
failure to consider the content and policies of the laws of the involved
states leads to arbitrary results. This is not to say that unilateralism does
not have its own problems. But this is why, in designing a PIL system,
one should not have to choose one methodology to the exclusion of the
other. We shall return to this point later.
713. See the rules of the Louisiana, Oregon, and Puerto Rico codifications, discussed
supra. Also, 85 per cent of cases by American courts in states that have abandoned the
lex loci delicti rule have applied the law of the parties’ common domicile in situations
involving loss-distribution conflicts. See Symeonides, Oxford Commentaries, at 194-
201.
714. Several codifications fall into this category, including those of : Azerbaijan
(Art. 26) ; China (Art. 44) ; Dominican Republic (Art. 69) ; Georgia (Art. 42) ; Italy
(Art. 62 (2)) ; Kazakhstan (Art. 1117) ; South Korea (Art. 32.2) ; Kyrgyzstan
(Art. 1203) ; Russia (Art. 1219.2) ; Tajikistan (Art. 1225.2) ; Ukraine (Art. 49) ; Uru-
guay (draft Art. 52) ; Uzbekistan (Art. 1194) ; and Vietnam (Art. 773).
715. See S. Symeonides, “Rome II and Tort Conflicts : A Missed Opportunity”, 56
Am. J. Comp. L. 173, 197-203 (2008).
716. For extensive discussion and critique, see ibid., at 211-215.
E. Comparison
As noted at the beginning of this chapter, the labels of unilateralism

and multilateralism are overly simplistic and misleading. As one author
puts it,
“[E]quating unilateralism with an unwillingness to apply
foreign law and multilateralism with a willingness to apply
foreign law is a poor way to use those terms.” 717
The truth is that unilateralism is not unwilling to apply foreign law,
nor even the unilateral rules of that law. But unlike multilateralism,
unilateralism examines the applicability of foreign law only after
concluding that forum law is inapplicable. In this sense, unilateralism is
forum-centred. Whether or not it is parochial as well, however, depends
on how frequently, and on what grounds, it reaches the conclusion that
forum law applies. While some unilateralists, like Currie, reach that
conclusion rather frequently, others are far more accommodating of
foreign law.
On the other hand, multilateralism does not always live up to its
commitment to treat forum and foreign law equally. First, as dis-
cussed earlier, some bilateral choice-of-law rules are facially
neutral but calculated to lead to the application of forum law much
more frequently than foreign law. Second, there is always the ordre
public exception which – whether used exceptionally and defensively
(as it should be), or frequently and offensively – results in the exclusion
of foreign law 718. Third, the old favourite devices of characterization 719
717. W. Dodge, “Extraterritoriality and Conflict-of-Laws Theory : An Argument for

Judicial Unilateralism”, 39 Harv. Int’l LJ 101, 109 (1998).
718. See, e.g., J. Chen, “Australian Report”, in S. Symeonides (ed.), Progress or
Regress, at 103 (“In effect, the doctrine of the ordre public has been used defensively
as well as offensively”) ; T. Pajor, “Polish Report”, in S. Symeonides (ed.), Progress
or Regress, at 337-338 (criticizing a Polish Supreme Court decision for this reason) ;
M. Fallon and J. Meeusen, “Belgian Report”, in S. Symeonides (ed.), Progress or
Regress, at 122 (commenting on the “remarkably ‘positive’ color” of the Belgian
Cour de Cassation’s definition of ordre public). Cf. B. Audit, “Rapport Français”, in
S. Symeonides (ed.), Progress or Regress, at 206-207 (describing how French lower
courts have used the ordre public device to apply French law to cases like Babcock
v. Jackson, i.e., cases arising out of accidents occurring outside France but involving
French parties only).
719. See, e.g., J. Chen, supra previous footnote, at 104 : “[C]haracterisation has
also been used by courts . . . to enable them to apply the forum law.” See also B. Audit,
supra previous footnote, at 203 :
“En fait, ce conflit de qualifications n’est que la manifestation d’un conflit de
politiques législatives, c’est-à-dire d’un ‘vrai conflit’ de lois, au sens de Currie. En
and renvoi 720 can be used to the same end, even if they are not
designed for such purpose. Fourth, the various escape clauses and soft
connecting factors contained in modern codifications provide ample
flexibility and the ability to favour forum law 721. For example, although
the term “closest connection” appears to contemplate a geographical
relationship, it does not expressly discourage an inquiry into state
interests ; in fact, it may provide legitimacy for such an inquiry if the
judge is willing to undertake it. As Ted de Boer notes, in his comments
on the application of the pertinent provision of the Rome Convention
by Dutch courts :
“Whether it is motivated by a wish to avoid unfamiliar foreign
law or by a vague better law notion or by a principled preference
for a certain substantive policy, the choice is easily wrapped in the
objective geographical terms of closest connection.” 722
Lastly, there is the selective use of unilateral rules like those described
earlier in this chapter. Thus, even if each of the above devices alone is
exceptional, they add up to many forum-favouring opportunities and
devices.
F. Combining multilateralism with accommodative unilateralism

In designing a PIL system, methodological purity is not a virtue –
it should be a means, not an end. The objective should be to provide
workable and rational solutions to conflicts problems. One cannot
accomplish this goal by relying solely on a single methodology, be it
multilateralism or unilateralism. If one accepts the premise that these
two methods are not antithetical, a premise that history confirms, the
next question is how one can combine them into a coherent system.
effet, le choix par un système donné d’une qualification reflète les considérations
sous-jacentes à la matière en cause en droit interne ; de sorte que la solution
affirmée exprime simplement qu’un tel conflit est résolu en faveur de la politique
législative du for.”
720. See, e.g., M. Fallon and J. Meeusen, “Belgian Report”, in S. Symeonides (ed.),
Progress or Regress, at 122 (“[T]he admission of renvoi in Belgium is also, and probably
for the most part, inspired by the wish to apply the lex fori”) ; L. Burián, “Hungarian
Report”, in S. Symeonides (ed.), Progress or Regress, at 274 (“The Hungarian PIL
Code . . . accepts reference back, but rejects reference to another legal system. So it
serves the homeward trend”).
722. T. M. de Boer, “The EEC Contracts Convention and the Dutch Courts”, 54
RabelsZ 24 (1990).
For the combination to be successful, multilateralism must continue

to provide the basic and outer framework of any approach to conflicts
resolution while benefiting from the core principle of unilateralism :
the notion that, in selecting the applicable law, one should consider
the purposes, policies, or interests underlying the laws from which the
selection is to be made. This notion helps the decision-maker identify
and rationally resolve false conflicts, which is no small accomplishment.
In the centuries-old history of PIL, progress has come in slow, tiny
steps. In this sense, empowering a decision-maker to separate false
conflicts from other conflicts and resolve the former by applying the
law of the only interested state is one of few breakthroughs in the recent
history of PIL. This remains true even after conceding (as one should)
that reasonable minds can differ on whether a particular case is in fact a
false conflict, or instead a true conflict or no-interest case.
With good will, and some effort, one can also resolve many
true conflicts within the confines of unilateralism by resorting to
principles of comparative impairment or “consequentialism” 723 ; that
is, by applying the law of the state whose interests would suffer the
most serious adverse consequences if its law were not applied. The
Louisiana codification 724 and the courts of California, New Jersey, and
the District of Columbia 725 provide numerous examples of how this can
be accomplished.
The common denominator between resolving false conflicts by
applying the law of the only interested state, and resolving true conflicts
by applying the law of the state that would otherwise suffer the greatest
impairment, is the basic principle of accommodation of state interests.
Rather than thinking in terms of advancing the interests of one state
at the expense of those of another state, the decision-maker aspires to
723. This term originated in theology to describe a doctrine according to which

the morality of an act is to be judged solely by its consequences. In choice-of-law,
consequentialism stands for the proposition that the quality of a choice-of-law decision
should be judged by the consequences it produces for the interests and values reflected
in the conflicting laws. For contemporary iterations of this notion in Russell Weintraub’s
approach and the Louisiana codification, see Symeonides, Oxford Commentaries, at
110, 678-688.
724. See Book IV of the Louisiana Civil Code (Arts. 3515, 3549). For discussion,
see S. Symeonides, “The Conflicts Book of the Louisiana Civil Code : Civilian,
American, or Original ?”, 83 Tul. L. Rev. 1041 (2009). For a specific example of such
a resolution of true conflicts, Articles 3543 and 3544 provide that, subject to some
qualifications, cases in which the tortfeasor’s conduct occurred in one state and the
victim’s injury occurred in another state with a higher standard of conduct or greater
financial protection for the victim are governed by the law of the latter state if the
tortfeasor should have foreseen that the injury would occur in that state.
725. See Symeonides, Oxford Commentaries, at 164-168.
avoid frustrating the interest of the state with the most to lose from an
adverse choice of law. In false conflicts, that state is the only interested
state. In true conflicts, it is the state with the strongest interest. This
principle of accommodation is unilateralist in that, rather than denying
the existence of state interests, it openly acknowledges them. The
fact that it then attempts to accommodate these interests makes it a
benevolent, or accommodative, unilateralism as compared to Currie’s
aggressive, imperialistic version.
Admittedly, even this accommodative unilateralism cannot resolve
the remaining third category of conflicts – those in which none of the
involved states has an interest in applying its law, that is, no-interest
cases. Examples include tort cases in which the parties are domiciled
in different states, and both the conduct and injury occurred (a) in the
tortfeasor’s home state, whose law protects the victim ; or (b) in the
victim’s home state, whose law protects the tortfeasor. To properly
resolve these cases, one must look outside the confines of unilateralism
and employ other criteria of conflict resolution, such as the parties’
justified expectations or reliance, and principles of territorialism, which
is to say multilateralism. Applying the law of the state in which both
the conduct and the injury occurred, is one example of how this can be
done.
To summarize, accommodative unilateralism begins with two
premises. The first is that, unlike domestic cases which involve only
the claims of the disputing parties 726, multistate cases also involve
the claims of the states that have relevant contacts with the particular
case. The classical PIL model rejects this premise and thus does not
consider the second premise, which is intuitive and self-evident : that,
as with any other conflict, one cannot intelligently resolve a conflict
of laws without first ascertaining the claims of each disputant, which
in multistate cases include the states whose laws are implicated in the
particular case. In turn, this means that one cannot ascertain, much
less evaluate, these claims without (a) examining the content of the
laws from which the choice is to be made, and (b) inquiring into their
purposes, policies, or underlying interests.
The above premises provide the starting point of the choice-of-law
inquiry. The complete formula consists of a conscious combination of
726. In fact, in systems that follow the doctrine of stare decisis, domestic cases
implicate not only the interest of the litigants but also, indirectly, the interests of
similarly situated persons or groups, such as manufacturers, consumers, insurers,
insureds, sellers, buyers, etc.
accommodative unilateralism and multilateralism in which the choice-

of-law inquiry begins with the first and ends with the second. This
inquiry would proceed as follows :
(1) If an examination of the laws of the involved states, in light of their
contacts with the parties and the case, leads to the conclusion that
only one state has a claim or interest in applying its law, then that
law should govern ;
(2) If more than one state has an interest, the resulting conflict should
be resolved by weighing the adverse consequences of the choice-
of-law decision on the interests of each involved state, and by
choosing the law of the state that would suffer the most from an
adverse choice ;
(3) In each of the above steps, there should be no favoritism toward the
interests of the forum state ; and
(4) If the conflict cannot be resolved in the first two steps, or if the
initial inquiry leads to the conclusion that none of the involved
states has an interest in applying its law, then the governing law
should be chosen by resorting to multilateral criteria such as those
described above.
CHAPTER VI
THE MATERIAL TEMPERING OF CONFLICTS JUSTICE
Section 1. The Question
One of the basic dilemmas of the choice-of-law process is whether,

in choosing the law applicable to cases involving conflicts of laws, a
court should aim for :
(1) The law of the proper state, that is, one possessing the most
pertinent contacts to the dispute, without concern for the “justness”
of the particular result produced by that law ; or
(2) The proper result, i.e., a result producing the same quality of justice
in the individual case as is expected in fully domestic, non-conflicts
cases.
The first answer is known as the “conflicts justice” view, and the
second is known as the “material justice” view. This chapter outlines
the first and then focuses on the second.
Section 2. The Orthodox Answer : “Conflicts Justice”
The classical, traditional view of PIL, going as far back as Savigny

and Story, is grounded on the basic premise that the goal of PIL is to
ensure that each multistate legal dispute is resolved according to the
law of the state that has the “most appropriate” relationship with that
dispute. Opinions on defining and assessing the “propriety” of such
a relationship have differed over the years, from one legal system to
another, and from one subject to the next. Despite such differences,
however, all versions of the classical school remain preoccupied with
choosing the proper state (“die richtige Ordnung” 727) as the supplier
of the applicable law, rather than directly aiming for the proper law (or,
much less, for the proper result).
Indeed, the implicit, if not explicit, assumption of the classical
school is that, in the great majority of cases, the law of the proper state
727. P. H. Neuhaus, Die Grundbegriffe des internationalen Privatrechts 42 n. 121

(1976) (quoting G. Beitzke, “Grundgesetz und IPR” (Lecture on 3 March 1961) ).
is the proper law 728. In this context, however, “propriety” is defined not

in terms of the law’s content, or the quality of the solution it produces,
but rather in geographical or spatial terms 729. If the contacts between
the state from which that law emanates and the multistate dispute at
hand meet certain pre-defined geographical criteria, the application of
that law is considered proper, regardless of the qualities of the solution
it produces. Whether the solution is “good” or “bad” depends on the
content of the applicable law, but under the classical view, PIL must
take content as-is 730. After all, conflicts exist because different societies
have laws reflecting different value judgments on how to resolve legal
disputes 731. As long as multistate disputes are resolved by choosing the
law of one state over the other, such a choice is bound to satisfy one
society and one party and aggrieve another. This being so, the choice of
the applicable law cannot afford to be motivated by whether it produces
a “good” or “just” resolution of the actual dispute. Hence, PIL should
strive to ensure the application of the law of the proper state (conflicts
justice) ; it cannot be expected to ensure the same type and quality of
justice as is pursued in fully domestic situations (material justice) 732.
728. See Struycken, “Co-ordination and Cooperation”, 228 (“The very first concern
is to find the proper law, in the sense of the classical approach dealt with here, simply
because – it should be stressed – the law to be designated is the proper law”).
729. See G. Kegel, “The Crisis of Conflict of Laws”, 112 Recueil des cours 91,
184-185 (1964) (“[W]hat is considered the best law according to its content, that is,
substantively, might be far from the best spatially”) ; Bogdan, “Law of the Forum”,
77 (“A typical conflict rule is certainly more space-oriented than value-oriented ; it
does not say who is right and who is wrong as far as the substance of the dispute is
concerned, but designates merely the legal system that will decide the issue. In most
cases, typical conflict rules are intended to function without regard to the contents of
the national legal systems involved”).
730. See Bogdan, “Law of the Forum”, at 79 (“A typical, traditional conflict rule
does not aspire to achieve substantive “justice” between a husband and his wife or
between a seller and a buyer in a particular case, and it is of course possible that the
final result the designated substantive rule leads to is sometimes perceived as less than
fair in this respect. The ‘justice’ pursued by the conflict rule is of a different kind”).
731. See A. von Mehren, “American Conflicts Law at the Dawn of the 21st Century”,
37 Willamette L. Rev. 133, 134 (2000) (“[T]he difficulties posed for instrumental or
teleological analysis are far greater when the controversies to be resolved are not
localized in a single legal order that holds shared values and policies and has a unified
administration of justice that can authoritatively weigh competing values and decide
which shall prevails when conflicts arise”). See also ibid., at 137 (“[T]he same degree
of justice usually cannot be given in matters that concern more than one society as is
provided in matters that concern only one society and its legal order”) ; A. von Mehren,
“Choice of Law and the Problem of Justice”, 41 Law & Contemp. Probs. 27, 42 (1977).
732. See O. Kahn-Freund, “General Problems of Private International Law”, 143
Recueil des cours 139, at 466 (1974) :
“[O]ne cannot be sufficiently emphatic in endorsing Professor Kegel’s rejection
of ‘substantive’ as against ‘private international law justice’ as a guiding line for
decisions in individual cases. It may be ‘just’ or ‘unjust’ to apply to an accident in
Gerhard Kegel, “the most influential German academic of the second

half of the twentieth century in the domain of conflict of laws” 733,
gave voice to this view when he wrote that “private international
law aims at the spatially best solution” while “substantive law aims
at the materially best solution” 734
. Kegel distinguished between
internationalprivatrechtliche Gerechtigkeit (private international law
justice) and materiellprivatrechtliche Gerechtigkeit (material private-
law justice) 735. This distinction has prevailed in the international
literature 736. The established view, especially in the civil law world, is
that PIL aims for “conflicts justice” (Kollisionsrechtliche Gerechtigkeit,
justice conflictuelle), rather than “material justice” (materielle
Gerechtigkeit, justice matérielle) 737.
Ontario the rule exempting a driver from liability to his guest if driver and guest
were on a day’s excursion from New York where no such exemption exists. But
the question is not . . . whether it is just or not that the driver should be liable to
the guest, the question is whether it is more just to apply the law of Ontario or that
of New York.”
733. H.-P. Mansel, “Gerhard Kegel”, in J. Basedow et al. (eds.), Encyclopedia of
PIL (2017).
734. G. Kegel, “Paternal Home and Dream Home : Traditional Conflict of Laws and
the American Reformers”, 27 Am. J. Comp. L. 615, 616-617 (1979).
735. See G. Kegel, “Begriffs- und Interessenjurisprudenz im internationalen
Privatrecht”, in M. Gerwig et al. (eds.), Festschrift Hans Lewald 259, 273 (1953) ;
G. Kegel, “Vaterhaus und Traumhaus : Herkömmliches internationales Privatrecht
und Hauptthesen der amerikanischen Reformer”, in O. Sandrock and W. de Gruyte
(eds.), Festschrift für Günther Beitzke, 551, 572 (1979) ; G. Kegel, Internationales
Privatrecht : Ein Studienbuch 80-81, 90 (6th ed., 1987) ; G. Kegel and K. Schurig,
Internationales Privatrecht 131 (9th ed., 2004).
736. But see S. Vrellis, “Conflit ou coordination de valeurs en droit international
privé : A la recherche de la justice”, 328 Recueil des cours 175, 327 (2007) (“Il est
inconcevable que la réglementation d’un rapport précis soit pour le même sujet
évaluant simultanément juste (selon les critères d’une justice de droit international
privé) et injuste (selon les critères d’une justice de droit matériel). C’est surtout la
doctrine américaine réaliste qui a insisté à ce qu’il devienne clair que ce dualisme
de justices, cette distinction ou cette ligne de démarcation entre deux justices, l’une
matérielle, l’autre de droit international privé, n’était qu’une pure fiction de notre
imagination” (internal citations omitted) ) ; S. Vrellis, “La justice ‘matérielle’ dans une
codification du droit international privé”, in A. Borrás et al. (eds.), E Pluribus Unum,
Liber Amicorum Georges Droz 541 (1996) ; Bucher, “La dimension sociale”, 52-53.
737. See, e.g., B. Audit and L. D’Avout , Droit international privé 94 (6th ed.,
2010) ; L. Corbion, Le déni de justice en droit international privé 364, 366 (2004) ;
J. Kropholler, Internationales Privatrecht 24 (6th ed., 2006) ; H. Gaudemet-Tallon,
“Le pluralisme en droit international privé : Richesses et faiblesses (Le funambule et
l’arc-en-ciel)”, 312 Recueil des cours 173-176, 205-207, 214-215, 226-228 (2005) ;
J. D. Gonzalez Campos, “Diversification, spécialisation, fléxibilisation et matérialisation
des règles de droit international privé”, 287 Recueil des cours 310 (2000) ; G. van
Hecke, “Principes et méthodes en droit international privé”, 126 Recueil des cours 39,
443 (1969) ; E. Jayme, “Identité culturelle et intégration : Le droit international privé
postmoderne”, 251 Recueil des cours 9, 94 (1995) ; C. Kessedjian, “Codification du
droit commercial international et droit international privé : De la gouvernance normative
pour les relations économiques transnationales”, 300 Recueil des cours 79, 221 (2004) ;
Section 3. The Heretical Answer : “Material Justice”
A. The Thesis
The dissenting view begins with the premise that multistate cases are
not qualitatively different from domestic cases, and so judges should not
abdicate their responsibility to resolve disputes justly and fairly when
they discover that a case contains foreign elements. Resolving disputes
in a manner that is substantively fair and equitable to the litigants
should be an objective of conflicts law as much as it is of internal law 738.
Justice should not be dispensed in gradations, and conflicts law should
not accept a lesser quality of justice. Thus, this view rejects the classical
presumption that the law of the proper state is necessarily the proper
law and directly scrutinizes the applicable law to determine whether it
actually produces the proper result. Again, opinions differ on defining
the “propriety” of the result, but all versions of this view agree that the
propriety should be determined in material (rather than spatial) terms.
This view is much older than generally believed. Historical prece-
dents include the Byzantine commentators’ preference for the philan-
thropoteron result 739, the Italian statutists’ preference for the forum’s sta-
tuta favorabilia over foreign statuta odiosa 740, and Magister Aldricus’s
call for the melius (best) solution 741. In response to a question of which
law should govern a dispute between residents of different provinces,
Magister Aldricus of Bologna, a twelfth-century jurist, replied that the
judge should apply “the one that seems more effective and more useful.
He should pass judgment in accordance with what seems better to him”
(“eam quae potior et utilior videtur. Debet enim judicare secundum
quod melius ei visum fuerit”) 742. Although this response is subject to
P. H. Neuhaus, “Neue Wege im europäischen internationalen Privatrecht ?”, 35 RabelsZ

401, 425-426 (1971) ; F. Vischer, “General Course”, 92-95.
738. See C. Roodt, “The Integration of Substantive Law Interests and Material
Justice in South African Choice of Law”, 36 Comp. & Int’l LJ of So. Afr. 1, 20 (2003)
(“[C]hoice of law is not an island, but part of the mainland of domestic substantive law.
Ultimately it must follow and further particular substantive interests”).
739. See M. Maridakis, “L’inaplicabilité du droit étranger à Byzance”, 2 Mélanges
Fredericq 79 (1965). The Greek word philanthropoteron is the comparative form
of the word philanthropos, which is the root of the English word “philanthropic”.
Philanthropoteron would loosely translate as the more philanthropic, humane,
benevolent, or merciful result.
740. See 1 A. Lainé, Introduction au droit international privé 146, 264 (1888).
741. See Code Cisianus E.VIII. 218, 46.
742. See K. Neumayer, Die gemeinrechtliche Entwickelung des internationalen
Privat- und Strafrechts bis Bartolus 67 (Vol. 2, 1916) (quoting Magister Aldricus of
Bologna).
different interpretations 743, several modern authors consider it the first

explicit endorsement of the material justice view in PIL literature.
In any event, for eight centuries, this view remained on the periphery
of choice-of-law thinking until the second half of the twentieth century,
when it found a hospitable climate in the United States and, to a lesser
extent, in Europe.
B. The American version
1. David F. Cavers

Chronologically, the first American author associated with the
material justice view is David F. Cavers (1902-1988). However, a care-
ful reading of Cavers’s early writings, and even a cursory reading
of his later writings, reveals that he remained within the confines of
the conflicts justice school. Cavers argued for a content-oriented law
selection, namely one that takes account of the content of the conflicting
laws and their underlying policies, but not necessarily for a result-
oriented choice 744.
In a pioneering law review article published in 1933, shortly before
the official publication of the First Restatement, Cavers exposed the
mechanical nature of the traditional choice-of-law methodology
enshrined in the Restatement. He compared it to a slot machine,
programmed to select the applicable law in a “blindfold” fashion, based
solely on territorial contacts, regardless of the content of the implicated
laws 745. In Cavers’s view, this exclusive reliance on territorial contacts
and the insistence on using “jurisdiction-selecting” rules not only
prevented a more individualized treatment of conflicts cases, but also
prevented intelligent choices. After all, Cavers observed, “The court
is not idly choosing a law ; it is deciding a controversy. How can it
choose wisely without considering how that choice will affect that
controversy ?” 746
743. See P. Franzina, “Aldricus”, in J. Basedow et al. (eds.), Encyclopedia of PIL

(2017).
744. As explained elsewhere (see Symeonides, Revolution 404-405, et passim), there
is a difference between a content-oriented selection and a result-oriented selection.
While all result-oriented rules or approaches are also content-oriented, the converse is
not true. Many content-oriented approaches aim at conflicts justice rather than material
justice. This is clearly true of Currie’s approach, as well as Cavers’s ultimate method,
his “principles of preference”, which are discussed below.
745. See D. Cavers, “A Critique of the Choice-of-Law Problem”, 47 Harv. L. Rev.
173, 178 (1933).
746. Ibid., at 189.
Cavers argued that, rather than choosing between states or

“jurisdictions” based on their territorial contacts and without regard to
how their laws would resolve the case at hand, a court should choose
between the conflicting laws based, in part, on the result each law would
produce in the particular case. Inter alia, the court should
“appraise these results in the light of those facts in the event or
transaction which, from the standpoint of justice between the
litigating individuals or of those broader considerations of social
policy which conflicting laws may evoke, link that event or
transaction to one law or the other” 747.
While many authors interpreted the above statement as subscribing
to the material justice view, Cavers disagreed. In his seminal book,
The Choice of Law Process, published in 1965 748, Cavers specifically
denied being “the intellectual heir of Aldricus” 749 and explained that his
earlier reference to “the demands of justice in the particular situation”
did not mean that the judge should “choose the rule he deemed the
better by domestic standards” 750. Cavers emphatically stated : “I am not
the champion of justice in the individual case that I have been made to
seem. I never have been.” 751
Indeed, the five “principles of preference” Cavers proposed in
that book confirm his belief in conflicts justice, albeit one dif-
ferent from that pursued by the First Restatement. Of the five prin-
ciples Cavers proposed for tort conflicts, one favours plaintiffs
under certain conditions and exceptions 752, another favours defen-
dants 753, two are neutral 754, and one favours plaintiffs, but not for
747. Op. cit. supra footnote 745, at 192-193.

748. D. Cavers, The Choice of Law Process (1965) (hereinafter Cavers, Process).
749. Ibid., at 86.
750. Ibid., at 9.
751. Ibid., at 76.
752. Cavers’s first principle for torts covers situations in which the injury occurs in
one state, and either the conduct, or the tortfeasor’s domicile, is in another state. The
principle calls for the application of the law of the state of injury, if that law provides
for “a higher standard of conduct or of financial protection against injury than do the
laws of the [other] state”, but only in the absence of a relationship between the parties
making it more appropriate to apply the law which would govern that relationship.
Ibid., at 139.
753. Cavers’s second principle covers situations in which the conduct and the injury
occur in one state, and the victim’s domicile is in another. The principle calls for the
application of the law of the former state, if that law provides for “a lower standard of
conduct or of financial protection than the victim’s domicile”. Ibid., at 146.
754. In cases in which the parties’ relationship is centred in one state but the injury
occurs in another, Principles 4 and 5 call for the application of the law of the former,
their sake 755. In each Principle, the choice is based on the policies of

the conflicting laws, the policies of the involved states, the parties’
expectations, and similar conflictual factors rather than on considerations
of material justice.
2. Robert A. Leflar
(a) Leflar’s approach

Robert A. Leflar (1901-1997) was the first true proponent of the
material justice view in the United States. Leflar helped lead the
American choice-of-law revolution along with Cavers and Brainerd
Currie, but he parted company with them on this issue. In two law
review articles published in 1966 756, Leflar proposed a non-hierarchical
list of five choice-influencing considerations to guide courts in resolv-
ing conflicts problems. The list consists of : (1) predictability of results ;
(2) maintenance of interstate and international order ; (3) simplifica-
tion of the judicial task ; (4) advancement of the forum’s governmental
interest ; and (5) the application of the “better rule of law.” Leflar argues
that, by following these considerations,
“courts can replace with statements of real reasons the mechanical
rules and circuitously devised approaches which have appeared in
the language of conflicts opinions, too often as cover-ups for the
real reason that underlay the decisions” 757.
As the above list indicates, there is more to Leflar’s approach than the
“better-law” criterion. In his words, this criterion “is only one of five,
more important in some types of cases than in others, almost controlling
in some but irrelevant in others” 758. Even so, nothing prevents the better-
whether that law favours the plaintiff (Cavers, Process, at 166), or the defendant (Ibid.,
at 177).
755. Principle 3 covers cross-border torts. It provides that, when a defendant
violates the standards of the state of conduct but not those of the state of injury, the law
of the state of conduct should govern if the injury in the other state was foreseeable.
See ibid., at 159. This Principle benefits the victim, but is not based on a favor laesi
rationale. Instead, the rationale is to effectuate the policies of the state of conduct, the
only interested state in such a scenario (false conflict).
756. See R. Leflar, “Choice-Influencing Considerations in Conflicts Law”, 41
NYU L. Rev. 267 (1966) ; R. Leflar, “Conflicts Law : More on Choice Influencing
Considerations”, 54 Cal. L. Rev. 1584 (1966).
757. R. Leflar, 54 Cal. L. Rev., supra previous footnote, at 1585.
758. R. Leflar, L. McDougal and R. Felix, American Conflicts Law 300 (4th ed.,
1986).
law criterion from becoming decisive in all those cases (and there are
many) in which the other four considerations are not dispositive. This is
precisely how courts employed this criterion (at least in the revolution’s
early years), while paying lip service to the other four. Moreover,
but for the better-law criterion, Leflar’s list differs little from those
proposed by others 759, or from the list of Section 6 of the Restatement
(Second). Consequently, Leflar’s approach is deservedly known as “the
better-law approach”, and one may criticize 760 or praise it 761 on that
basis. The main criticisms are that a better-law approach can become
a euphemism for a lex fori approach, and that it provides convenient
cover for judicial subjectivism 762. Although Leflar admonished against
subjective choices, arguing that judges are capable of recognizing when
foreign law is better than forum law 763, considerable evidence supports
the conclusion that these risks are real 764.
(b) Judicial reception
Perhaps for obvious reasons, judges found Leflar’s approach
appealing 765. Five states soon adopted it for tort conflicts (New
759. See, e.g., the list proposed in E. Cheatham and W. Reese, “Choice of the
Applicable Law”, 52 Colum. L. Rev. 959 (1952).
760. See, e.g., P. Hay, P. Borchers and S. Symeonides, Conflict of Laws 56-62 ;
H. Baade, “Counter-Revolution or Alliance for Progress ?”, 46 Tex. L. Rev. 141, 155
et seq. (1947) ; D. Cavers, “The Value of Principled Preferences”, 49 Tex. L. Rev. 211,
212-213, 214, 215 (1971) ; G. Kegel, “Paternal Home and Dream Home : Traditional
Conflict of Laws and the American Reformers”, 27 Am. J. Comp. L. 615 (1979) ;
S. Symeonides, “Material Justice and Conflicts Justice in Choice of Law”, in P.
Borchers and J. Zekoll (eds.), International Conflict of Laws for the Third Millennium :
Essays in Honor of Friedrich K. Juenger 125 (2000) ; A. von Mehren, “Recent Trends
in Choice-of-Law Methodology”, 60 Cornell L. Rev. 927, 952-953 (1975).
761. See “Robert A. Leflar Symposium on Conflict of Laws”, 52 Ark. L. Rev. 1
(1999) (containing articles by Watkins, Cox, Felix, McDougal, Simson, Reynolds,
Richman, Weintraub, and Whitten) ; “Symposium : Leflar on Conflicts”, 31 SC L.
Rev. 409 (1980) ; F. Juenger, “Leflar’s Contributions to American Conflicts Law”, 31
SC L. Rev. 413 (1980) ; J. Singer, “Pay No Attention to that Man behind the Curtain :
The Place of Better Law in a Third Restatement of Conflicts”, 75 Ind. LJ 659 (2000) ;
M. Thomson, “Method or Madness ? : The Leflar Approach to Choice of Law as
Practiced in Five States”, 66 Rutgers L. Rev. 81 (2013).
762. Mathias Reimann identifies the following seven critiques : “lack of reliable
standards, inherent indeterminacy, exacerbated forum law preference, violation of
sovereign equality, lack of judicial authority, concerns about efficiency, and the danger
of superficial reasoning”. M. Reimann, “Better Law Approach”, in J. Basedow et al.
763. See R. Leflar, L. McDougal and R. Felix, American Conflicts Law 298-299
(4th ed., 1986) (“Judges can appreciate . . . the fact that their forum law in some areas is
anachronistic . . . or that the law of another state has these benighted characteristics.”).
764. See infra, Chap. VI.3.B.2.b.
765. For warm praise by Justice Todd, the author of the majority opinion in
Milkovich v. Saari, 203 NW 2d 408 (Minn. 1973), see J. Todd, “A Judge’s View”, 31
Hampshire in 1966 766, Wisconsin in 1967 767, Rhode Island in 1968 768,

Minnesota in 1973 769, and Arkansas in 1977 770) and two states did
likewise for contract conflicts (Wisconsin in 1970 771, and Minnesota in
1979 772). By the turn of the century, these states began to blend Leflar’s
approach with other methodologies and to rely less on the better-law
criterion. But the early cases provided ample ammunition to the critics
of that approach. Indeed, it is not surprising that an approach that
authorizes an ad hoc, unguided, and ex post choice of the “better” law
would produce choices reflective of the subjective predilections of the
judges making them. To the extent that judges tend to prefer domestic
law to foreign law, plaintiffs over defendants (foreign or domestic),
or domestic over foreign litigants (plaintiffs or defendants), judicial
decisions are bound reflect such preferences. The early cases from
the five states following Leflar’s approach exhibit all three of these
tendencies to a higher degree than usual. Although these tendencies
are not parallel, they all stem from the same source – the judicial
subjectivism that the better-law approach legitimizes 773.
A preference for forum law is a by-product of the human tendency
to gravitate to the familiar. In that vein, it is not surprising that judges
tend to consider the forum’s law, with which they are most familiar, the
better law. More often than not, this is precisely what judges applying
the better-law approach concluded. In this sense, the Wisconsin
Supreme Court was refreshingly forthright in essentially equating its
adherence to Leflar’s approach with a strong presumption in favour of
the lex fori 774.
SC L. Rev. 435 (1980). See also Justice R. B. Ginsburg, “Tribute to Robert A. Leflar”,
50 Ark. L. Rev. 407 (1997).
766. See Clark v. Clark, 222 A. 2d 205, 210 (NH 1966).
767. See Heath v. Zellmer, 151 NW 2d 664 (Wis. 1967).
768. See Woodward v. Stewart, 243 A. 2d 917 (RI 1968).
769. See Milkovich v. Saari, 203 NW 2d 408 (Minn. 1973).
770. See Wallis v. Mrs. Smith’s Pie Co., 550 SW 2d 453 (Ark. 1977).
771. See Haines v. Mid-Century Ins. Co., 177 NW 2d 328 (Wis. 1970).
772. See Himes v. State Farm Fire and Cas. Co., 284 NW 2d 829 (Minn. 1979).
773. As Ehrenzweig notes, “[W]e all have a sense of justice, our judgments that
we derive from that sense, are necessarily inconsistent with each other, not only as
between nations, communities, families, but in ourselves.” 1 A. Ehrenzweig, Private
International Law at 58 (1972).
774. See State Farm Mut. Auto. Ins. Co. v. Gillette, 641 NW 2d 662, 676 (Wis. 2002)
(prefacing its application of the five Leflar factors with a statement that the primary
choice-of-law rule in Wisconsin is that “the law of the forum should presumptively
apply unless it becomes clear that nonforum contacts are of the greater significance”).
See also Love v. Blue Cross and Blue Shield of Georgia, Inc., 439 F. Supp. 2d 891 (ED
Wis. 2006) (stating that the better-law factor “largely echoes . . . the advancement of the
forum’s governmental interest”. Ibid., at 897. “In other words”, said the court, when the
Indeed, a survey of cases decided in the five states that follow Leflar’s
approach, in the first three decades after they adopted it, found only four
Supreme Court cases in which the court admitted that the tort law of the
non-forum state was better than the forum’s 775. The court had applied
foreign law in three of those cases but – perhaps not coincidentally – in
two of those cases, that law favoured a forum plaintiff. In the third, a
legislative change prior to trial had eliminated the difference between
the forum and foreign laws. The fourth case did not apply the “better”
foreign law, perhaps because that law disfavoured a forum defendant.
Finally, in the only other tort conflict in which the court applied foreign
law, that law produced the same result as a forum statute that was
inapplicable on technical grounds.
A preference for forum law often, though not always, translates into
a preference for plaintiffs. This is due to the wide latitude plaintiffs
generally enjoy in choosing a forum, and the strong likelihood that they
will choose a forum whose conflicts law and substantive law favour
recovery. For example, as the above survey illustrates 776, in four of the
five post-lex loci tort conflicts that reached the Rhode Island Supreme
Court in which the plaintiff’s recovery depended on the applicable law,
the court applied the pro-recovery law of the forum for the benefit of
a foreign plaintiff. Similarly, of the six tort conflicts cases decided by
the New Hampshire Supreme Court, two cases applied forum law for
the benefit of a forum plaintiff, three cases applied forum law for the
benefit of a foreign plaintiff, and the sixth case applied forum law for
the benefit of a forum defendant.
On occasion, the preference for a forum litigant (plaintiff or defendant)
prevails over other preferences, including the preference for forum law.
For example, in two of the three cases in which the Minnesota Supreme
Court applied foreign law (in both tort and contract conflicts), that law
benefited a forum plaintiff 777. If this is not coincidental, it suggests
that when forced to choose between forum law and protecting forum
litigants, courts tend to choose the latter. Lower court decisions provide
even clearer evidence of this trend 778.
forum state has “a clear policy, and when the state’s law fairly articulates that policy, it
follows that the ‘better rule of law’ will tend to be the forum state’s law”).
775. See Symeonides, Revolution 82–83.
776. Ibid., at 83-84.
777. Ibid., at 84-85.
778. See, e.g., Boatwright v. Budak, 625 NW 2d 483, 489 (Minn. Ct. App.
2001) (applying Iowa law because “Iowa law best serve[d] Minnesota’s interests
in compensating tort victims” domiciled in Minnesota, even though Minnesota law
These biases became less pronounced in cases decided around

and since the end of the twentieth century. Most likely, this change
correlates to the fact that, by that time, most of the states that initially
adopted Leflar’s approach began to combine it with other approaches
and de-emphasize the better-law factor.
The trend towards an eclectic approach is most prominent in Rhode
Island and Minnesota, which now combine Leflar’s approach with
several other methodologies 779. Inevitably, this combination works at
the expense of Leflar’s emblematic consideration – the “better-law”
factor. This may explain the Minnesota Supreme Court’s statement
that “this court has not placed any emphasis on [the better-law] factor
in nearly 20 years” 780. Indeed, the better-law criterion appears to
play a far less significant role in recent decisions than it did 30 years
ago. In recent years, some courts have expressed misgivings about
their ability to determine which law is better, or have tried to dispel
the notion that “better law” and “forum law” are synonymous, while
others have employed the better-law criterion only as a tiebreaker or
ignored it altogether 781. If this trend persists, then perhaps the better-
law approach should resume its original name of (many) “choice-
influencing considerations”.
3. Other American authors
Unlike Leflar, four other American authors associated with the

material justice view did not succeed in attracting judicial following 782.
favoured the defendant by limiting the amount of damages) ; Lommen v. The City of
East Grand Forks, 522 NW 2d 148 (Minn. Ct. App. 1994) (applying Minnesota’s pro-
defendant law to protect a Minnesota defendant in an action brought by a North Dakota
plaintiff injured in North Dakota).
779. See Cribb v. Augustyn, 696 A. 2d 285 (RI 1997) (combining Leflar’s approach
with the Restatement (Second) and an “interest-weighing approach”, i.e., interest
analysis that is itself combined with the very weighing of interests which Currie had
proscribed) ; Nodak Mut. Ins. Co. v. American Family Mut. Ins. Co., 604 NW 2d 91, 96
(Minn. 2000) (describing the court’s approach as “the significant contacts test”, which,
however, relies not on contacts, but on Leflar’s five choice-influencing factors, the first
of which are merely hortatory and, by the court’s count, the fifth factor (the “better
law”) has not been employed “in nearly twenty years”, thus leaving only one factor –
the “[a]dvancement of the forum’s governmental interest”).
780. Nodak Mut. Ins. Co. v. American Fam. Mut. Ins. Co., 604 NW 2d 91, 96 (Minn.
2000).
781. See Symeonides, Revolution 87.
782. Among scholars of the present generation, Joseph W. Singer has also expressed
sympathy for the material justice view, but his support is nuanced and qualified. See
J. Singer, “Pay No Attention to That Man behind the Curtain : The Place of Better Law
in a Third Restatement of Conflicts”, 75 Ind. LJ 659 (2000) ; J. Singer, “Justice and
The first, Moffatt Hancock (1912-1993), proposed a result-selective

approach before even Leflar did 783. He suggested that, in a true conflict
situation, courts should “consider which of the two competing rules
will produce the most rational, convenient and just decision in the
litigation before them” 784. However, Hancock specifically rejected as
“rigid and dogmatic” 785 Currie’s automatic application of the lex fori
in true conflicts, as well as a subjective assessment of which of the
conflicting rules is “better”. He stressed that
“[t]o justify rejection of a domestic rule in a true conflict case, an
objective demonstration must be made that the rule in question
is an anachronism, repugnant to accepted present-day policies,
by reference to judicial or commentarial criticisms or through
historical policy analysis” 786.
The second author is Russell J. Weintraub (1929-2012). In the first
three editions of his Commentary, Weintraub proposed two result-
oriented rules – a plaintiff-favouring rule for non-false tort conflicts 787,
and a “rule of validation” for contract conflicts 788. In the 2001 edition of
his Commentary, Weintraub conceded that his earlier proposed tort rule
“was really an attempt at ‘better law’ analysis” 789, which was necessary
at a time when tort laws were drastically different from state to state, and
some states held on to anachronistic anti-recovery rules. Because, in the
the Conflict of Laws”, 48 Mercer L. Rev. 831 (1997) ; J. Singer, “A Pragmatic Guide
to Conflicts”, 70 BU L. Rev. 731 (1990) ; J. Singer, “Multistate Justice : Better Law,
Comity, and Fairness in the Conflict of Laws”, 2015 U. Ill. L. Rev. 1923 (2015).
783. See M. Hancock, “Three Approaches to the Choice of Law Problem : The
Classificatory, the Functional and the Result-Selective”, in K. Nadelmann, A. von
Mehren and J. Hazard (eds.), XXth Century Comparative & Conflicts Law 365 (1961),
reproduced in M. Hancock, Studies in Modern Choice-of-Law : Torts, Insurance, Land
Titles 1 (1984). For reviews of Hancock’s work, see D. P. Currie, Book Review, 52 U.
Chi. L. Rev. 271 (1985) (reviewing Moffatt Hancock, Studies in Modern Choice-of-
Law : Torts, Insurance, Land Titles (1984)) ; H. Hill Kay, “Testing the Modern Critics
against Moffatt Hancock’s Choice of Law Theories”, 73 Cal. L. Rev. 525 (1985) ;
R. A. Sedler, “Moffatt Hancock and the Conflict of Laws : An American-Canadian
Perspective”, 37 U. Toronto LJ 62 (1987).
784. M. Hancock, Studies in Modern Choice-of-Law, supra previous footnote,
at 8.
785. Ibid., at 141.
786. Ibid.
787. See R. Weintraub, Commentary on the Conflict of Laws 360 (3rd ed., 1986)
(proposing that “true conflicts” and “no interest” cases be resolved by applying the law
that favours the plaintiff, unless that law is “anachronistic or aberrational”, or the state
with that law “does not have sufficient contact with the defendant or the defendant’s
actual or intended course of conduct to make application of its law reasonable”).
788. See ibid., at 397-398.
789. R. Weintraub, Commentary on the Conflict of Laws 356 (4th ed., 2001).
interim, many states had abandoned those rules, Weintraub abandoned

his plaintiff favouring rule. Instead, he proposed a new “consequences-
based approach” 790, which “chooses law with knowledge of the content
of the laws of each of the [involved] states . . . [and] seeks to minimize
the consequences that any such state is likely to experience if its law is
not applied” 791.
The last two authors are Friedrich K. Juenger and Luther McDougal,
whose writings are discussed in Chapter II 792. Unlike Weintraub, they
remained ardent supporters of the material view until the end ; moreover,
unlike Leflar, they went beyond the selectivist method and advocated
for a substantivist approach. While Leflar called for choosing the better
between the existing laws of the involved states, Juenger argued that
the court should construct and apply a new substantive rule derived
from the laws of the involved states 793. McDougal took a step further
than Leflar and Juenger when he proposed his “best” law approach.
Unlike Leflar and Juenger, who thought that the courts’ choices, albeit
different, should be confined to the laws of the states involved in the
conflict, McDougal argued that, “Courts are not so limited in their
choice” and that they should, in principle, be free to look beyond those
states in constructing the “best” rule of law 794.
C. European perspectives
Beginning with the 1960s, the material justice view also found
supporters in Europe. Chronologically, this includes Jozef Ernst Jan
Theodoor Deelen 795, Peter Max Gutzwiller 796, Christian Joerges 797,
790. See op. cit. supra footnote 789, at 347.

791. Ibid. According to this approach, the court should : (1) identify the underlying
policies of the conflicting laws of the involved states ; (2) determine whether the non-
application of a state’s law would cause that state “to experience consequences that it
is its policy to avoid” ; and (3) ensure that “application of the law of a state that will
experience consequences . . . [is] fair to the parties in the light of their contacts with
that state”. Ibid., at 350.
792. See supra, Chap. II.2.D.
793. Juenger, Multistate Justice, 145-173, 191-208, 233-237.
794. L. McDougal, “Towards the Application of the Best Rule of Law in Choice of
Law Cases”, 35 Mercer L. Rev. 483, 483-484 (1984).
795. See J. E. J. Th. Deelen, “De blinddoek van Von Savigny”, 14 Neth. Int’l L. Rev.
174 (1967).
796. See P. M. Gutzwiller, “Von Ziel und Methode des IPR”, 25 Schweizerisches
Jahrbuch für Internationales Recht 161 (1968).
797. See C. Joerges, Zum Functionswandel des Kollisionsrecht, Die “Governmental
Interest Analysis” und die “Krise des Internationalen Privatrechts” (1971).
Konrad Zweigert 798, Hans Ulrich Jessurun d’Oliveira 799, and Theodor

M. de Boer 800. These authors pointed out the “hypocrisy” of the
prevailing conflicts justice view, which,
“while feigning indifference to substantive law values, . . . allowed
court to take full account of those values by dint of a whole stock
of doctrines – such as characterization, public policy, renvoi, and
the like – that could be bent easily to serve that purpose” 801.
It was time, they argued, to “drop ‘Savigny’s blindfold’ altogether,
rather than to go on peeping from underneath it” 802.
Unlike their American colleagues, “the European critics did not
come up with a viable alternative” 803 to the established PIL system,
and it does not seem that they attracted any judicial following. Even so,
one could argue that the European authors influenced the content of the
new PIL codifications. As discussed below, many of those codifications
contain more numerous result-oriented choice-of-law rules than the old
codifications.
Section 4. Covert Result Selectivism in the Courts

One of Leflar’s arguments in support of his better-law approach is that
it realistically represents what courts actually do : choose the preferred
substantive result first, and then use various “cover-ups for the real
reason that underlay the decisions” 804. Leflar believed that “honesty is
the better policy, even in judicial decisions” 805. As Mathias Reimann
writes, Leflar “broke a taboo : he openly said what most observers
secretly knew, namely that courts often do consider, albeit tacitly, the
798. See K. Zweigert, “Zur Armut des internationalen Privatrechts an sozialen

Werten”, 37 RabelsZ 435 (1973) ; K. Zweigert, “Some Reflections on the Sociological
Dimensions of Private International Law or What Is Justice in Conflict of Laws ?”, 44
U. Colo. L. Rev. 283 (1973).
799. See H. U. Jessurun d’Oliveira, De ruïne van een paradigma : De konfliktregel
(1976).
800. See T. M. de Boer, “Een dreigend faillissement : het tekort van het international
privaatrecht”, in Weekblad voor Privaatrecht, Notariaat en Registratie 285 (1976) ;
T. M. de Boer, “Facultative Choice of Law : The Procedural Status of Choice-of-Law
Rules and Foreign Law”, 257 Recueil des cours 223, 293-297 (1996).
801. T. M. de Boer, “Facultative Choice of Law”, supra previous footnote, at 294.
802. Ibid.
803. Ibid., at 295.
804. R. Leflar, “Conflicts Law : More on Choice Influencing Considerations”, 54
Cal. L. Rev. 1584, 1585 (1966).
1986).
involved laws’ content” 806. In Leflar’s words, no one can question

“whether courts in fact have employed [the better-law] consideration in
deciding conflicts cases ; they always have” 807. He continues :
“The tendency to select a law that will sustain the validity of
contracts and other voluntary arrangements entered into in good
faith, the use of characterization as a device for moving a set of
facts from one legal pigeon-hole to another, the application of
renvoi for the specific purpose of changing to another state’s law,
are all undeniable in their result-selective effects. The only possible
argument is as to whether these justice-seeking techniques should
remain as cover-ups only, or be openly recognized and expressly
justified.” 808
Leflar hoped that his approach would force courts to replace these
“cover-ups” with the “real reasons” 809 for their decisions.
At least in the American context, it is difficult to question the
accuracy of Leflar’s depiction of what courts did before the revolution
as they developed and overused so many escape devices 810. To a
lesser extent, this may be true even after the revolution. The need for
manipulative escape devices decreased, as most states of the United
States abandoned the traditional rule-based system in favour of flexible
ad hoc approaches. Nonetheless, it is unclear whether these approaches
curbed, rather than bolstered, the judges’ appetite for material justice.
One could argue that many judges continue to choose the preferred
substantive result first, and then rationalize the choice methodologically
under these approaches 811. So much so that, according to some critics,
“[Much] of the case law is incomprehensible if one is unaware
of the fact that behind the smokescreen of renvoi or the calculus
of governmental interest analysis there lurks a distinct favor
judicis.” 812
806. M. Reimann, “Better Law Approach”, in J. Basedow et al. (eds.), Encyclopedia

of PIL (2017).
807. R. Leflar, “The Nature of Conflicts Law”, 81 Colum. L. Rev. 1080, 1088 (1981).
808. Ibid., at 1088-1089 (footnotes omitted).
809. R. Leflar, “Conflicts Law : More on Choice Influencing Considerations”, 54
Cal. L. Rev. 1584, 1585 (1966).
810. See Symeonides and Perdue, Conflict of Laws 48-123.
811. See C. Peterson, United States Report, in Symeonides (ed.), Progress or
Regress ?, 413, 425 (“The modern [American] theories . . . all purport in one way
or another to take substantive justice into account. . . . [S]ome form of pursuit of the
objective of substantive justice is the prevailing view”).
Even so, the fact that result-orientation is often a realistic explanation

of the outcome of many American conflicts cases should not mean that
one should ratify this de facto state of affairs, this favor judicis, and
elevate it to a de jure method of conflict resolution. “One . . . must
distinguish between recognition of the way things are and something
advocated as an ideal.” 813 In the words of Otto Kahn-Freund,
“However much . . . in practice the judge’s choice of law may
be influenced by his preference for the content of one law or
another, it is inadvisable to elevate a fact of human weakness to a
principle of legislative policy.” 814
In any event, there is evidence that Leflar’s description of the
judicial instinct to aim for the material preferred result also applies,
to some extent, to other legal systems 815. Because of their position,
judges have a close-up view of the facts and circumstances of the
parties, and can easily discern where the equities lie. In turn, such
awareness can influence a judge’s decision of whether to use any of
the old mechanisms, such as characterization, ordre public, or renvoi,
in order to avoid the result dictated by a content-blind, jurisdiction-
selecting rule. Fritz Juenger provides several old examples of such
use by European courts 816 and European authors offer more recent
evidence. For example, Marc Fallon and Johan Erauw note that Belgian
courts have used renvoi “to deviate from the choice-of-law rule before
the entry into force of the [new] Belgian code . . . especially . . . in
the field of tort, in reaction against the hard and fast rule designating
the law of the place of the tort” 817. Likewise, Carlos Esplugues and
Carmen Azcárraga note the result-oriented function of the ordre public
reservation in Spanish judicial practice, concluding that public policy
is “used as a tool to protect our values after the ‘blind’ choice-of-law
813. J. E. Westbrook, “A. Survey and Evaluation of Competing Choice-of-Law

Methodologies : The Case for Eclecticism”, 40 Mo. L. Rev. 407 (1975).
814. O. Kahn-Freund, “General Problems of Private International Law”, 143
Recueil des cours 139, at 466 (1974).
815. See Vrellis, “Conflit ou coordination”, at 424 (“[M]ême sous l’approche
continentale, il ne faut pas oublier que, en général, les juges sont réalistes . . . [i]ls
choisissent (plutôt d’instinct) la solution qui leur paraît la plus correcte, enessayant de
justifier par la suite leur choix à l’aide des mécanismes que l’ordre juridique leur offre.
Cela montre que la ‘subjectivité’ du juge entre inéluctablement en jeu”).
816. See Juenger, Multistate Justice 173-179.
817. J. Erauw and M. Fallon, “Flexibility and Conflict Justice in the Belgian Code
of Private International Law”, in E. Dirix and Y.-H. Leleu (eds.) The Belgian Reports
at the Congress of Washington of the International Academy of Comparative Law, 227,
249 (2011).
rule has pointed out the law applicable to the controversy” 818. Several
authors have made the same points with regard to other countries, such
as Bernard Audit for France 819 and Spyros Vrellis for Greece 820.
One can only surmise that this phenomenon, what Juenger calls
“teleology by stealth” 821, is much more frequent now that most recent
PIL codifications in Europe and elsewhere contain softer choice-of-
law rules, as well as flexible escape clauses that expressly authorize
judges to deviate from the codification’s rules in appropriate cases 822.
As Christa Roodt reminds us,
“Even if the flexibility incorporated into leading civil law
codifications is intended to have geographical and not a result-
oriented effect, . . . the judiciary may interpret broadly phrased
choice of law rules as an invitation to consider . . . a variety of
substantive interests [which] may come to the fore.” 823
Several authors confirm the judicial use of these escapes clauses in
the pursuit of material justice. For example, in discussing the general
escape clause of Article 15 (1) of the Swiss codification, Kurt Siehr
notes :
“Although not enacted for this purpose but rather to correct a
generalizing ‘jurisdiction-selecting’ rule, such a correction may
be influenced by a certain ‘touch’ for material justice. If a law not
designated by the regular conflicts rule is less ‘just’ than another
law with close connections to the case, the latter as the law of the
much closer connection is likely to replace the former. Although
818. C. Esplugues Mota and C. Azcárraga Monzonís, “Spanish Report, Private Inter-
national Law, International Academy of Comparative Law : XVIII International
Congress”, IV.2 available at https ://papers.ssrn.com/sol3/papers.cfm ?abstract_id=
1953835.
819. See B. Audit, “Rapport Français”, in S. Symeonides (ed.), Progress or Regress ?
191, 202-210 (discussing the French use of characterization, renvoi, and ordre public as
vehicles for material justice).
820. See S. Vrellis, “Rapport grec”, in Symeonides (ed.), Progress or Regress ?
243, 245-246 (discussing efforts to characterize employment accidents as contractual,
rather than delictual, so as to make them fall within the scope of the flexible article
governing contracts, rather than the inflexible article governing torts, with the ultimate
objective being to choose “la loi matérielle la plus juste (la ‘meilleure’)”) ; S. Vrellis,
“Introductory Observations”, para. 182 (discussing, inter alia, the use of procedural
characterization, the ordre public reservation, and alternative connecting factors, “in
order to ensure accomplishment of the desired substantive result”).
821. Juenger, Multistate Justice at 175.
822. See infra, Chap. VII ; Symeonides, Codifying Choice of Law 190-204.
823. C. Roodt, “The Integration of Substantive Law Interests and Material Justice in
South African Choice of Law”, 36 Comp. & Int’l LJ of So. Afr. 1, 11 (2003).
everybody agrees that Article 15 (1) does not codify a ‘better-law

approach’, it cannot be excluded that this escape clause also will
serve as a safety valve for ‘material justice’.” 824
Twelve years after Siehr’s comment, Andrea Bonomi confirmed
this very use of the escape clause. He describes several Swiss court
decisions to that effect, concluding that the escape clause of Article 15
has been “sometimes used by courts to favor a certain material result,
though it was not originally intended to be for that purpose” 825.
Obviously, the pursuit of material justice is both easier and more
likely in choice-of-law systems in which judges are not constrained
by pre-established choice-of-law rules, but instead resolve conflicts
problems on a case-by-case basis. In such systems, the judge has the
freedom, and is more likely to have the predilection, to aim for a result
that is spatially and materially proper. For example, an Australian
author notes :
“Since [they are] not generally constrained by statutory choice
of law rules, Australian courts have exercised a fair degree of
freedom in being able to take into account the content, aims and
objectives of potentially conflicting laws . . . [although] [i]t is
only rarely that judges openly admit that they are applying the
forum or foreign law because it produces justice in the particular
case. In many international cases, nevertheless, the result is one
which appeals intuitively to a sense of justice, and material justice
certainly appears to have been an underlying, though unspoken,
aim of the approach adopted by the court.” 826
A Danish author makes a similar point :
“Although Danish judges rarely reveal the philosophy which
guides their decision-making, some available evidence supports
824. K. Siehr, “Swiss Report”, in Symeonides (ed.), Progress or Regress ?, 383,

387.
825. A. Bonomi, “The Swiss Codification of Private International Law of 1987”,
in Rapports suisses présentés au XVIIIe Congrès international de droit comparé
Washington, 3, at IV.3 (e) and II (2010).
826. A. de Jonge, “Australian National Report to 18th International Congress of
Comparative Law”, IV (2010). See also J. Chen, “Australian Report”, in Symeonides
(ed.), Progress or Regress ?, 83, 87 (characterizing a decision of the High Court of
Australia as being “clearly an acceptance of the US emphasis on achieving justice,
fairness and the best practical result”). See also ibid., at 88-89 (“Australian courts have,
on occasions and through manipulation of classification techniques and choice of law
rules, made direct choice of the most desirable law or result, sometimes quite openly”).
the claim that Danish judges consider the content and purpose
of competing substantive rules, at least where no inflexible PIL
codification stands in their way.” 827
The “Scandinavian legal pragmatism” 828
that the Danish author
describes is confirmed by a Norwegian author, who also notes that :
“The pragmatic, case-oriented approach of Norwegian courts
tends to address the question of governing law from the point
of view of the scope of applicability of Norwegian law, having
in mind what would be the best solution under those particular
circumstances.” 829
Section 5. Overt Result Selectivism in Legislation
A. Introduction
One could argue that the aforementioned result-motivated judicial
deviations from the established PIL system are both unauthorized and
infrequent and that PIL remains very much a system devoted to the
pursuit of conflicts justice. To test this proposition, we now turn to the
official world of PIL – legislation – to examine the extent to which it
continues to serve the goal of conflicts justice, and the extent to which
it makes allowances for material justice. To this end, the rest of this
chapter surveys all PIL codifications enacted in the last 50 years (a total
of 86 830), and identifies those rules that directly and explicitly authorize
courts to reach a particular substantive result.
827. J. Lookofsky, “Choice of Law in Denmark : Code-Light or Code-Tight ?

Danish National Report to 18th International Congress of Comparative Law”, IV
(2010), available at http ://www.cisg.law.pace.edu/cisg/biblio/lookofsky20.html. See
also Lookofsky, “Danish Report”, in Symeonides (ed.), Progress or Regress ?, 147, 150
(“[M]ost Danish judges would also agree with the proposition that multistate cases are
not qualitatively different from fully domestic cases and that a judge’s duty to resolve
disputes justly and fairly does not disappear the moment the judge encounters a case
with foreign elements.” (internal quotation marks omitted)).
828. J. Lookofsky, “Choice of Law in Denmark”, supra footnote 827, IV.
829. G. Cordero Moss, “Norwegian National Report to 18th International Congress
of Comparative Law”, IV (2010). See also K. Boele-Woelki, C. Joustra and G. Steenhoff,
“Dutch Report”, in Symeonides (ed.), Progress or Regress ?, 295, 307 (“Nowadays, it
is generally recognized that substantive values should be integrated into the choice of
law process”). Ibid., at 309-310 (describing one approach followed in the Netherlands,
the “favour approach”, which “comes close to the American doctrine of better law”).
830. This survey draws from and builds on research conducted for another book,
Symeonides, Codifying Choice of Law, which the reader may consult for further details.
The survey does not cover rules or techniques which may indirectly
produce this result. Examples include : (1) open ended choice-of-law
rules ; (2) rules employing soft or indeterminate connecting factors ;
(3) content-oriented choice-of-law rules ; (4) statutory escape clauses ;
(5) the ordre public reservation ; (6) the characterization process ;
(7) and renvoi 831. The survey also does not cover rules that are intended
to produce a particular result, such as protecting the weak party,
but do not always succeed in doing so. Examples of such rules are
Articles 5 and 7 of Rome I, which attempt to protect passengers and
insureds by imposing geographical, rather than substantive restrictions
on party autonomy 832. However, as discussed in detail in another
publication, these geographic restrictions do not always protect
passengers or insureds 833. For example, if the passenger’s ticket
contains a clause choosing the law of the place of destination, there is
no guarantee that the chosen law will protect the passenger.
B. Result-selective choice-of-law rules in general

Result-selective rules, as defined above, appear in varying shapes and
forms. The common characteristic, however, is that they are specifically
designed to accomplish a certain substantive result which is considered
a priori desirable. This result is favoured by the domestic law of the
enacting state and, more often than not, by the majority of states that
partake in the same legal tradition. As Table 1 opposite indicates, the
result may be one of the following :
(1) Favouring the formal or substantive validity of a juridical act, such
as a testament, a marriage, or an ordinary contract ;
(2) Favouring a certain status, such as legitimacy or filiation, the status
of a spouse, or even the dissolution of a status (divorce) ; or
831. For a comparative discussion of these rules or techniques, see Symeonides,

Codifying Choice of Law 175-208 ; Symeonides, Progress or Regress ? 26-34, 37-42.
832. In contracts for the carriage of passengers, Article 5 (2) of Rome I limits the
parties’ choice to the country in which (a) the passenger has her habitual residence,
(b) the carrier has its habitual residence or central administration, or (c) the country
of the place of departure or destination. In small risk insurance contracts, Article 7 (3)
imposes similar geographic restrictions to the parties’ choice of law. For such contracts,
Rome I imposes no substantive limitations on party autonomy, other than those imposed
by the mandatory rules or the public policy of the forum state. See ibid., Arts. 9 (2),
21. In addition, Article 9 (3) imposes the limitations embodied in the “overriding”
mandatory rules of the lex fori (as well as those of the state of performance), but these
rules contemplate an equally high threshold as that of the ordre public exception, even
if they differ in operation.
833. See S. Symeonides, Codifying Choice of Law 165-170.
(3) Favouring a particular party, such as a tort victim, the owner of

stolen movable property, a consumer, an employee, a maintenance
obligee, or any other party whom the legal order considers weak, or
whose interests are considered worthy of protection 834.
Table 1. Result-Selective Statutory Choice-of-Law Rules
A. Rules favouring the validity of juridical acts (favor validitatis)
1. Testaments (favor testamenti)
2. Contracts and other juridical acts (favor negotii)
B. Rules favouring a certain status
1. Legitimacy (favor legitimationis)
2. Filiation (favor infantis)
3. Acknowledgment
4. Adoption
5. Marriage (favor matrimonii)
6. Divorce (favor divortii)
C. Rules favouring one party
1. Pre-dispute choice of law by one party
2. Post-dispute choice of law by one party
(a) Victim’s choice in cross-border torts and products liability
(b) Choice by owner of stolen property
(c) Choice by unwed mother
3. Post-dispute choice by the court
(a) For the benefit of tort victims
(b) For the benefit of maintenance obligees
(c) For the benefit of children and other weak parties
(d) For the benefit of consumers
(e) For the benefit of employees
The first two objectives (favouring the validity of a juridical act or

favouring a certain status) are accomplished by choice-of-law rules
containing a list of alternative references to the laws of several states
connected with the case, and authorizing the court to select a law that
validates the juridical act or confers the preferred status. These rules are
known as “alternative-reference” rules. They are an old choice-of-law
tool 835 but have become far more common than in the past. Although
they are designed to serve material justice rather than conflicts justice,
alternative-reference rules structurally fit the traditional mould because,
“[They] do not entail an unguided judicial assessment of
the relative merits of conflicting laws. Instead, they specify the
desired result – e.g., the optimal protection of children’s rights –
834. For general discussion see F. Pocar, “La protection de la partie faible en droit
835. See H. Baum, Alternativanknüpfungen : Begriff, Funktion, Kritik 9-16 (1985).
at the outset. Rules of this kind facilitate the transition from

the classical method to a value-oriented approach because they
employ familiar connecting factors, such as the place where an
event occurs, the situs of property, and the nationality or domicile
of individuals. Since alternative reference rules are evolutionary
rather than revolutionary, even traditionalists consider them
doctrinally unobjectionable.” 836
The third aforementioned objective (protecting a particular party) is
accomplished through choice-of-law rules that :
(1) Grant alternative choices to the court as described above ;
(2) Allow the protected party, either before or after the events giving
rise to the dispute, to choose the applicable law from among the
laws of certain designated states ; or
(3) Protect that party from the adverse consequences of a potentially
coerced or uninformed choice-of-law.
Although the German literature sometimes uses the term “substan-
tification” or “materialization” (Materialisierung) 837 to describe the
above rules, one should not mistake them for the transnational
substantive rules discussed in Chapter II, above. The rules discussed
here are classic choice-of-law rules, insofar as they mandate the choice
of the existing substantive law of one of the involved states, rather than
directly providing a substantive solution to the conflict at hand. At the
same time, they are result-selective, or result-oriented, because they
instruct courts to choose a law that produces a particular substantive
result, such as upholding a juridical act or favouring a particular party. In
this sense, the French terms règles de conflit à coloration matérielle 838
or règles de rattachement à caractère substantiel 839 are particularly apt.
836. Juenger, Multistate Justice 195-196.

837. P. H. “Neuhaus, Neue Wege im europäischen internationalen Privatrecht ?”, 35
RabelsZ 401, 407 (1971).
838. B. Audit and L. D’Avout, Droit international privé 96-99 (6th ed., 2010) ;
L. Gannagé, “Les méthodes du droit international privé à l’épreuve des conflits de
cultures”, 357 Recueil des cours 257, 292 (2013) ; Y. Lequette, “Le droit international
privé de la famille à l’épreuve des conventions internationales”, 246 Recueil des cours
9, 39, 215 (1995).
839. Y. Loussouarn, P. Bourel and P. de Vareilles-Sommieres, Droit international
privé 181-185 (9th ed., 2007) ; P. M. Patocchi, Règles de rattachement localisatrices
et règles de rattachement à caractère substantiel (1985) ; F. Soirat, Les règles de
rattachement à caractère substantiel (1995) ; A. Bucher, “Sur les règles de rattachement
à caractère substantiel”, in Liber Amicorum Adolf F. Schnitzer 37 (1979) ; H. Gaudemet-
Tallon, “L’utilisation des règles de conflit à caractère substantiel dans les conventions
C.
Rules favouring the validity of certain juridical acts (favor
validitatis)
Result-selective rules designed to favour the validity of a certain

juridical act existed even at the beginning of the twentieth century.
However, by the end of the century, they proliferated, and their scope
expanded. As the following discussion indicates, these rules (1) can be
found in almost every country ; (2) now apply to more juridical acts
than ever before ; and (3) encompass not only issues of form but also
issues of substance.
One of the broadest rules of this type is Article 22 (2) of the
Paraguayan Civil Code, a unilateral rule that encompasses all juridical
acts. The article provides that foreign laws shall not be applied if they
are less favourable to the validity of a juridical act than the Code’s own
provisions 840. Most other rules are bilateral and narrower in scope, as
they encompass only certain juridical acts.
1. Testaments (favor testamenti)
The policy of favor testamenti is an old policy of the substantive

law of succession 841. This policy also has been projected to the
multistate level by choice-of-law rules that are designed, through a
list of alternative references to several laws, to preserve the validity
of the testament whenever possible by authorizing the court to apply
whichever listed law would uphold the testament.
(a) Formal validity
The Hague Convention on the Conflicts of Laws Relating to the

Form of Testamentary Dispositions (1961) contains one of the longest
lists of alternative references 842. Article 1 of the Convention provides
internationales (l’exemple des Conventions de La Haye)”, in Mélanges en l’honneur

d’Yvon Loussouarn 181 (1994).
840. Paraguayan Civ. Code, Art. 22 (2) (“No se aplicarán las leyes extranjeras
cuando las normas de este Código sean más favorables a la validez de los actos”).
841. See E. Rabel, Conflict of Laws : A Comparative Study 287 (1958) (“invalidity of
a will, discovered after the testator’s death is irreparable.”) ; S. Symeonides, “Exploring
the ‘Dismal Swamp’ : The Revision of Louisiana’s Conflicts Law on Successions”, 47
La. L. Rev. 1029, 1046, 1048 (1987).
842. The text of the Convention and a list of the countries in which it is in force
are available at http ://www.hcch.net/index_en.php ?act=conventions.textandcid=40.
For an authoritative discussion of this Convention by its Rapporteur, see A. E. von
that a testament shall be considered formally valid if it conforms to the

internal law of any one of the following places :
(a) The place where the testator made the disposition ;
(b) A nationality possessed by the testator, either at the time he made
the disposition, or at the time of his death ;
(c) A place in which the testator had his domicile, either at the time he
made the disposition, or at the time of his death ;
(d) The place in which the testator had his habitual residence, either
at the time he made the disposition, or at the time of his death ; or
(e) Insofar as immovables are concerned, the place where they are
situated 843.
In the majority of cases, a court will be limited to a couple of
choices under this article. However, in cases involving dual nationals,
or testators who changed domicile or nationality between making the
testament and the time of death, the court’s choices will be far more
numerous, indeed, as many as eight 844.
The Hague Convention is in force in 42 countries 845. In addition, at
least 44 countries have adopted rules with similar or (usually) shorter
lists, or alternative-validating references 846. One of the oldest such
rules was the 1910 Uniform Wills Act in the United States. The Act was
gradually adopted in a majority of states of the United States, and was
eventually replaced by a similar result-oriented provision contained in
the Uniform Probate Code. Section 2-506 of the Code provides that a
testament meeting certain minimum requirements is valid
“if its execution complies with the law at the time of execution
of the place where the will is executed, or of the law of the place
where, at the time of execution or at the time of death the testator
is domiciled, has a place of abode, or is a national” 847.
Overbeck, L’unification des règles de conflits de lois en matière de forme de testaments

(1961).
843. Hague Testaments Convention, Art. 1.
844. The eight possibilities are the states of : (1) the place of the testament’s making ;
(2) the testator’s nationality (a) at the time of testament, or (b) at the time of death ;
(3) the testator’s domicile (a) at the time of testament, or (b) at the time of death ;
(4) testator’s habitual residence (a) at the time of testament, or (b) at the time of death ;
or (5) with regard to immovables, the situs state.
845. For a list of these countries, see https ://www.hcch.net/en/instruments/
conventions/status-table/ ?cid=40.
846. For a list of these countries, see Symeonides, Codifying Choice of Law 254-
255.
847. Uniform Probate Code, § 2-506 (2010 version). For the text of the Code, see
http ://uniformlaws.org/Act.aspx ?title=Probate Code. This version of the Code has been
The EU Regulation on Successions of 2012 (Rome IV) has followed

a path similar to the Hague Convention, by adopting an even more
liberal rule for matters of testamentary form. This rule is more liberal
because it also applies to “agreements as to succession”. Article 27
provides that a written mortis causa disposition shall be valid as to
form if it complies with the law of :
(a) The state in which the disposition was made or the succession
agreement concluded ;
(b) The nationality, domicile, or habitual residence of the testator,
or of at least one party to the agreement, at either the time of the
disposition or agreement, or the time of death ; or
(c) With regard to immovables, the situs state 848.
(b) Substantive validity
Rules designed to favour the validity of a testament with regard

to matters other than form are less common, but they do exist. For
example, regarding testamentary capacity, the codifications of Austria,
Louisiana, and Puerto Rico provide alternative references to the laws
of the testator’s domicile at either the time of the testament’s making,
or the time of the testator’s death 849. The Serbian codification limits
the choices to the time of making the testament but authorizes the
application of the law of either the testator’s habitual residence or
nationality 850. The Swiss codification limits the choices to the time of
the testator’s death but expands them to “the law of the state of his
domicile or of his habitual residence, or the law of one of the states
adopted in the following 17 states : Alaska, Arizona, Colorado, Hawaii, Idaho, Maine,
Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico,
North Dakota, South Carolina, South Dakota, Utah, and Wisconsin. Virtually all other
states of the United States have adopted similar validation rules. See Symeonides, “The
‘Dismal Swamp’ ”, 1043.
848. Article 27 of Regulation (EU) No. 650/2012 of the European Parliament and of
the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement
of decisions, and acceptance and enforcement of authentic instruments in matters of
succession and on the creation of a European Certificate of Succession (Rome IV).
For discussion, see A. Bonomi and P. Wautelet, Le droit européen des successions :
Commentaire du Règlement no 650/2012 du 4 juillet 2012 (2015) ; G. Khairallah and
M. Revillard (eds.), Droit européen et international des successions : Le règlement du
4 juillet 2012 (2013) ; A. Bonomi, “Successions internationales : Conflits de lois et de
juridictions”, 350 Recueil des cours 71 (2011).
849. See Austrian codif., Art. 30 ; Louisiana codif., Art. 3529 ; Puerto Rico draft
codif., Art. 44.
850. See Serbian draft codif., Art. 107.
of which he is a national” 851. The Finnish Inheritance Code adopts the

same solution with regard to time, but adds to these choices the “law
applicable to the inheritance” 852.
Other codifications extend this liberality to other matters affecting
substantive validity. For example, the Liechtenstein codification
provides that a mortis causae disposition is valid as to capacity “and
other conditions or validity” if it satisfies the requirements of the laws
of the decedent’s nationality, or habitual residence, at either the time
of disposition or the time of death, or of the law of Liechtenstein with
regard to proceedings in that country 853. The Chinese codification
allows the same choices with regard to the “effects” of a testament, but
is not phrased explicitly in validating terms 854.
2. Contracts and other juridical acts (favor negotii)
(a) Formal validity
Many codifications provide similar validating rules for contracts and

other inter vivos juridical acts. As noted earlier, the broadest rule in this
regard is Article 22.2 of the Paraguayan codification, which provides
that foreign law does not apply if the rules of “this code”, that is, the
Paraguayan Civil Code, are “more favourable to the validity of juridical
acts” 855. Most other codifications have narrower rules that differentiate
between matters of form and substance.
Article 11 of the European Union’s Rome I Regulation stands out
as a characteristic example of a validation rule for matters of form.
Article 11 provides that a contract is formally valid if it satisfies the
requirements of the law of the state which governs the substance of
the contract (hereinafter lex causae) 856. The article also provides that :
(1) a contract concluded between persons who are in the same country
is formally valid if it satisfies the requirements of that country ; and
851. Swiss codif., Art. 94.

852. Finnish Code of Inheritance, Art. 10.
853. See Liechtenstein codif., Art. 30. Article 74 of the Montenegrin codification
provides that the existence, material validity, effects, and interpretation of mortis
causae disposition, as well as the capacity of the disposer, are governed by the law
governing the succession at either the time of making the disposition or at the time of
the disposer’s death, whichever validates the disposition.
854. See Chinese codif., Art. 35. However, the choices do not include the lex fori
as such.
855. Paraguayan codif., Art. 22.2.
856. It should be noted that in Rome I, and in many other codifications, this law may
well be the law designated in a choice-of-law clause.
(2) a contract between persons who are in different countries is

formally valid if it conforms to the law of “either of the countries where
either of the parties or their agent is present at the time of conclusion,
or of the law of the country where either of the parties had his habitual
residence at that time” 857.
Rome I supersedes identical or similar rules found in EU member
states, such as Bulgaria, Estonia, Germany, Italy, Lithuania, the
Netherlands, Poland, and Romania 858 ; however, those rules remain in
force for juridical acts other than contracts falling outside the scope of
Rome I. Parallel provisions are found in the Hague Sales Convention,
as well as in the codifications of Albania, South Korea, Moldova,
Montenegro, Oregon, Puerto Rico, Serbia, Switzerland, Taiwan,
Tunisia, and Ukraine 859.
The Mexico City Convention provides that contracts between parties
who are in different states are valid if they conform to : (a) the law
of either state, (b) the law that governs the substance of the contract
(lex causae), or (c) the law of the place of performance (lex loci
solutionis) 860. However, for contracts between parties who are present
in the same state, the Convention provides a somewhat curious rule.
Such contracts are valid if they meet the requirements of (a) the lex
causae, (b) the lex loci solutionis, or (c) “the law of the State in which
the contract is valid” 861. It is to be noted that the quoted phrase does
not require any connection between “the State” and the contract or the
parties.
Many codifications also have adopted contract validation rules with
shorter or longer lists of alternative references in multiple combinations,
including the following 862 :
857. Rome I, Art. 11. For a similar provision, see Rome Convention, Art. 9.
858. See Bulgarian codif., Art. 98 ; Estonian codif., Art. 37 ; German codif., Art. 11 ;
Italian codif., Art. 57 ; Lithuanian codif., Arts. 1.38 (contracts) and 1.41 (donations) ;
Dutch codif., Art. 12 ; Polish codif., Art. 25 ; Romanian codif., Art. 2639.
859. See Art. 11 of the Hague Convention for the Law Applicable to the International
Sales of Goods (1986) ; Albanian codif., Art. 18 ; South Korean codif., Art. 17 ;
Moldova codif., Art. 1610 ; Montenegro codif., Art. 45 ; Oregon contracts codif.
§ 15.325 ; Puerto Rico draft codif., Art. 32 ; Serbian draft codif., Art. 146 ; Swiss codif.,
Arts. 124 (contracts), Art. 178 (2) (arbitration agreements), and Art. 56 (formalities
of matrimonial agreements) ; Taiwanese codif., Art. 16 ; Tunisian codif., Art. 68 ;
Ukrainian codif., Art. 31.
860. Inter-American Convention on the Law Applicable to International Contracts,
Art. 13 (2) (1994).
861. Ibid., Art. 13 (1).
862. For a table depicting all of these combinations and the codifications adopting
them, see Symeonides, Codifying Choice of Law 258. Some codifications allow an
additional reference to the law of the situs with regard to immovables.
(1) The lex loci actus or the lex loci causae (8 codifications) 863 ;

(2) The lex loci actus, the lex causae, or – in contracts between parties
not acting in the same state – the law of the state of either party’s
presence or habitual residence (20 codifications) 864 ;
(3) The lex loci actus or the common national law of the contracting
parties (3 codifications) 865 ;
(4) The foreign lex loci actus or the lex fori (10 codifications) 866 ;
(5) The lex loci actus, lex causae, or lex solutionis (1 codification) 867 ;
(6) The lex loci actus, the lex causae, or the law of the parties’ common
domicile or nationality (5 codifications) 868 ;
(7) The lex loci actus, lex causae, lex fori, or law of the place of
intended effect of the contract (1 codification) 869 ;
(8) The lex loci actus, the lex causae, the lex rei sitae, or the law of the
domicile of one of the parties (1 codification) 870 ;
(9) The lex loci, the lex causae, or the law of the domicile of the
executing party (4 codifications) 871 ; and,
(10) The lex causae, the lex loci, or the law designated by the choice-
of-law rule of the lex loci (1 codification) 872.
The common denominator among these codifications is that they all
subscribe to the notion that validation, rather than invalidation, is the
desired substantive policy, although they differ widely on the degree of
preference that policy should enjoy and on the means used to attain it.
863. See Argentinian codif, Art. 2649 ; Croatian codif., Art. 7 ; Japanese codif.,
Arts. 10, 34 ; North Korean codif., Art. 26 ; Peruvian codif., Art. 2094 ; Portuguese
codif., Art. 36.2 ; Serbian codif., Art. 41 ; Turkish codif., Art. 7.
864. See the provisions of Rome I and the codifications of Bulgaria, Estonia,
Germany, Italy, Lithuania, the Netherlands, Poland, and Romania cited supra footnotes
857-858 ; and those of Albania, South Korea, Moldova, Montenegro, Oregon, Puerto
Rico, Serbia, Switzerland, Taiwan, Tunisia, and Ukraine, cited supra footnote 859.
865. See Algerian codif., Art. 19 ; Burundi codif., Art. 5 ; Rwanda codif., Art. 14.
866. See Azerbaijan codif., Art. 17.1 ; Belarus codif., Art. 1116 ; Dominican Republic
codif., Art. 68 (similar, but with an additional option of the law of the state of either
the offer or acceptance, if the parties were located in different states) ; Guinea-Conakry
codif., Art. 9 ; Kazakhstan codif., Art. 1104 ; Kyrgyzstan codif., Art. 1190 (subject to an
exception for cases involving forum citizens) ; Russian codif., Art. 1209.1 (containing
the same exception) ; Tajikistan codif., Art. 1210 (same) ; Uzbekistan codif., Art. 1181
(same) ; Vietnamese codif., Art. 770 (1).
867. See Slovenian codif., Art. 7.
868. See Jordanian codif., Art. 21 ; Qatar codif., Art. 29 ; Somalian codif., Art. 20 ;
Sudanese codif., Art. 11 (13c) ; Yemen codif., Art. 31.
869. See Hungarian codif., Art. 29 (2).
870. See Quebec codif., Art. 3109 (1) (2).
871. See Moldova codif., Art. 1610 ; Mongolian codif., Art. 548 ; Spanish codif.,
Art. 11 ; Venezuelan codif., Art. 37.
872. See Macau codif., Art. 35.
(b) Capacity
The trend of favouring the validation of juridical acts has carried

over even to issues of capacity, although validation in this context
is placed within narrower parameters than is the case with issues of
form. For example, even traditional European Civil Codes, like those
of Greece and Spain, contain rules reflecting the solution reached in
the well-known nineteenth-century Lizardi case 873. These rules favour
validation by applying the validating rule of the lex fori as the lex loci
actus, in lieu of the otherwise applicable personal law of the actor 874.
At least 20 other codifications reproduce this rule in its unilateral
iteration 875.
Other codifications have bilateralized this rule by authorizing the
application of the validating law of the locus actus, even when that
locus is not in the forum state. For example, the Chinese codification
provides that although a person’s capacity to enter into juridical acts
is governed by the law of her habitual residence, a person lacking
requisite capacity under that law is nevertheless considered capable,
if she possesses such capacity under the law of the place of the act 876.
Over 20 other codifications contain similar rules 877.
Along similar lines, the Venezuelan codification provides that
a person lacking capacity under the law of his domicile shall be
considered capable if he possesses capacity under the law governing
873. Req., 16 January 1861, in Dalloz périodique 1.193 (1861), Sirey 1.305 (1805).
874. See, e.g., Greek Civ. Code, Arts. 7, 9 ; Spanish Civ. Code, Art. 10 (8). These
rules contain exceptions making them inapplicable to matters of family law and
successions.
875. See the codifications of : Algeria (Art. 10) ; Angola (Art. 28.1) ; Cape Verde
(Art. 28.1) ; East Timor (Art. 27.1) ; Guinea-Bissau (Art. 28.1) ; Hungary (Art. 15
(2) (3) ) ; Jordan (Art. 12) ; North Korea (Art. 18) ; Latvia (Art. 8) ; Macau (Art. 27) ;
Mauritania (Art. 7) ; Peru (Art. 2070) ; Portugal (Art. 28 (1) ) ; Qatar (Art. 11) ;
Slovakia (Art. 3.2) ; Somalia (Art. 11) ; Sudan (Art. 11.1) ; Taiwan (Art. 10 (3) ) ; UAE
(Art. 11.1) ; and Yemen (Art. 25). In contrast, a rule such as Article 762 (2) of the
Vietnamese codification is not a result-selective validating rule. That rule provides that
Vietnamese law governs the capacity of foreigners acting in Vietnam (rather than the
otherwise applicable law of the actor’s nationality), regardless of whether Vietnamese
law would validate or invalidate the act.
877. See the codifications of : Albania (Art. 12) ; Armenia (Art. 1265) ; Bulgaria
(Art. 50 (2) ) ; Burkina Faso (Art. 1018) ; Croatia (Art. 14) ; Estonia (Art. 12.2) ; FYROM
(Art. 15) ; Germany (Art. 12) ; Italy (Art. 23.2 (3) ) ; Japan (Art. 4) ; South Korea
(Arts. 13, 15.1) ; Liechtenstein (Art. 12) ; Oregon (§ 15.330) ; Poland (Arts. 11‑12) ;
Puerto Rico draft codif. (Art. 33) ; Quebec (Art. 3086) ; Russia (Art. 1197) ; Serbia
(draft Art. 55) ; Switzerland (Art. 36) ; Tunisia (Art. 40.) ; Slovenia (Art. 13) ; Turkey
(Art. 9.2) ; Ukraine (Art. 18).
the substance of the act 878. The Louisiana codification contains a similar

yet more precise rule, providing that a person is considered capable
of contracting if she possesses the requisite capacity under the law of
the state in which she is domiciled, or under the law applicable to the
particular issue under the codification’s general flexible approach for
contract conflicts 879.
The Puerto Rico and Oregon codifications reproduce the same rule,
but provide also that a person may invoke her incapacity under the
law of her domicile only against a party that “knew or should have
known” of the incapacity 880. This test is similar to that provided in
the Rome Convention and later the Rome I Regulation. Article 13 of
Rome I provides that, in contracts concluded between persons who are
in the same country, a natural person who would have capacity under
that country’s law may invoke his incapacity under another law only
if the other party was “aware of that incapacity . . . or was not aware
thereof as a result of negligence” 881. More than 15 other codifications
contain similar rules that narrowly favour validation by limiting the
circumstances under which a party may invoke a law that declares that
party incapable of contracting 882.
Finally, in the United States, one author has extracted a similar “rule
of validation” from the case law 883, and two others have proposed
explicit validation rules encompassing, inter alia, issues of contractual
capacity. Thus, subject to certain exceptions, Russell Weintraub would
uphold a contract that is considered valid under the law of “any state
having a contact with the parties or with the transaction sufficient
to make that state’s validating policies relevant” 884. Similarly, in his
Principle of Preference No. 6, David Cavers would apply a state’s
invalidating law only if the party protected by that law is domiciled in
that state, and the transaction is centred there 885.
878. Venezuelan codif., Art. 18.

879. See La. codif., Art. 3539.
880. See Oregon contracts codif., § 15.330 ; Puerto Rico Draft Code, Art. 33.
881. Rome I, Art. 13. See also Rome Convention, Art. 11.
882. See the codifications of Argentina (Art. 2617) ; Armenia (Art. 1265) ; Bulgaria
(Art. 50.2) ; Burkina Faso (Art. 1018) ; Estonia (Art. 12.2) ; Germany (Art. 12) ;
Italian (Art. 23.2(3)) ; South Korea (Arts. 13, 15.1) ; Liechtenstein (Art. 12) ; Moldova
(Art. 1592) ; Montenegro (Art. 14) ; Netherlands (Art. 11.2) ; Poland (Art. 12) ; Puerto
Rico (draft Art. 33) ; Quebec (Art. 3086) ; Switzerland (Art. 36) ; Tunisia (Art. 40).
883. See A. Ehrenzweig, “The Statute of Frauds in the Conflict of Laws : The Basic
Rule of Validation”, 59 Colum. L. Rev. 874, 875-880 (1959) ; A. Ehrenzweig, “Choice
of Law : Current Doctrine and True Rules”, 49 Cal. L. Rev. 240 (1961).
884. R. Weintraub, Commentary on the Conflict of Laws 397 (3rd ed., 1986).
885. See Cavers, Process 180.
D. Rules favouring a certain status
1. Legitimacy (favor legitimationis)
Until at least the middle of the twentieth century, a child’s illegiti-

macy carried discriminatory and stigmatizing legal and social effects
in virtually every country. Because of these dire consequences, the
domestic law of most countries contained several rules designed to
ensure that all ambiguities and doubts would be resolved in favour of
legitimacy. Because legitimacy was the preferred status in domestic
law, it also became the favoured status in PIL. This preference was
reflected in choice-of-law rules that, within certain narrow parameters,
were designed to lead to the application of a law that afforded the status
of legitimacy.
By now, these rules have multiplied, even though the discriminatory
treatment of illegitimate children is decreasing, having been declared
unconstitutional in many countries. For example, Article 2083 of the
Peruvian Civil Code provides that “[m]atrimonial filiation is governed
by the law of the place where the marriage was celebrated or of the
conjugal domicile at the time the child is born, whichever is more
favourable to legitimacy” 886.
Similarly, the Japanese, South Korean, and Taiwanese codifications
favour legitimacy by providing that a child is legitimate if the child
enjoys that status under the national law of either parent or of the
child 887. The Liechtenstein codification provides that legitimacy at
birth and legitimation by subsequent marriage are governed by the
common personal law of the spouses and, in the absence thereof, by the
law of the spouse that favours the child’s legitimacy or legitimation 888.
The Portuguese codification, and codifications based on it, favour
legitimacy by prohibiting an otherwise permissible renvoi if it would
lead to a law that would consider the child illegitimate 889.
886. Peruvian codif., Art. 2083. See also Italian codif., Art. 33 (2) (providing
that legitimacy is governed by the national law of either parent) ; Italian codif.,
Art. 34 (providing that legitimation by a subsequent marriage is governed by the child’s
national law or the national law of either spouse).
887. Japanese codif., Art. 30 ; South Korean codif., Art. 42 ; Taiwanese codif.,
Art. 51.
888. See Liechtenstein codif., Arts. 22-23.
889. See Portuguese codif., Art. 19 (1) ; Angola codif., Art. 19.1 ; Cape Verde codif.,
Art. 19.1 ; East Timor codif., Art. 18.1 ; Guinea-Bissau codif., Art. 19.1 ; Macau codif.,
Art. 17 ; Mozambique codif., Art. 19.1.
Finally, the Slovenian codification provides that legitimacy is

governed by the law of the parents’ common nationality and, in the
absence thereof, by the national law of that parent whichever favours
legitimacy 890. The Croatian codification takes a further step. It provides
that if neither parent’s national law would consider the child legitimate,
the law of the forum applies if the child and the parents are domiciled
in the forum 891.
2. Filiation (favor infantis)

Even where the distinction between legitimacy and illegitimacy
disappears, the consequences that flow from the status of a child
(legitimate or illegitimate) continue to provide the rationale for other
result-oriented rules favouring that status. An example of such a rule is
Article 3091 of the Quebec codification, which provides that filiation
is governed by “the law of the domicile or nationality of the child or
one of his parents . . . whichever is more beneficial to the child” 892.
The Serbian codification provides that the law of the child’s habitual
residence at the time of the proceedings determines parentage, but “if
it is in the best interest of the child” parentage is determined by the law
of the child’s nationality, or the nationality or habitual residence of the
parent whose parentage is at issue 893.
Similar examples abound, including the following :
– The Tunisian codification allows a court to choose the most favourable
from among the laws of the nationality or domicile of the defendant
or the child 894 ;
– The Czech, Polish, Puerto Rico, Romanian, and Slovak codifications
also authorize the court to choose between two laws the one that
favours the filiation 895 ;
890. See Slovenian codif., Art. 45.

891. See Croatian codif., Art. 43.
892. Quebec codif., Art. 3091. See also Austrian codif., Art. 25 (1) (authorizing the
application of the personal law of the child at either the time of birth or later, whichever
favours paternity).
893. Serbian draft codif., Art. 85.1. For a similar rule regarding the acknowledgment
of the child of a “common law marriage”, see ibid., Art. 85.2.
895. Article 55 of the Polish codification provides alternative references to the laws
of the child’s nationality at the time of birth, or at the time of (judicial) determination.
Article 2605 of the Romanian codification provides that the filiation of a child who has
dual foreign citizenship is governed by whichever of two laws is more favourable to the
child. Article 23 of the Slovak codification provides that paternity is determined under
the law of the state of the child’s nationality at birth, but if the child presently lives in
– The Burkina Faso codification provides that if paternity cannot be

established under the national law of the father, it can be established
under the law of the common domicile of the parents or, failing that,
under the law of forum 896 ;
– The German codification provides that parentage is determined by
alternative references to the law of the child’s habitual residence,
the parent’s national law, and the law that governs the effects of the
marriage 897 ;
– The Argentinian codification and the Uruguayan draft codification
authorize the court to choose from among three laws the one
favouring filiation 898 ;
– The Albanian, Bulgarian, and Montenegrin codifications list four
choices 899 ; and
– The Lithuanian and Turkish codifications provide six choices 900.
The Chinese codification provides more generally that the “personal

and property relations of parent and child” are governed by the law
of their common habitual residence and, in the absence thereof, by
the law of either party’s habitual residence or nationality, “whichever
the forum state, paternity may be determined under forum law, “if this is in the child’s
interest”. Article 54 of the new Czech codification adds the mother’s habitual residence
to these choices. Articles 15 and 16 of the Puerto Rico Draft Code provides that a child
is filiated to a parent who, at the time of birth, is considered a parent under the law of
the state in which the child was born or the state where that parent was domiciled ; and
to a parent who, subsequent to the child’s birth, entered into a marriage that, under
the law of the state in which either that parent or the child was domiciled, resulted in
filiating the child.
896. Burkina Faso codif., Art. 1031.
897. See German codif., Art. 19. See also Italian codif., Art. 13 (3) (providing that
renvoi shall be taken into account only if it leads to the application of a law that allows
filiation to be established).
898. See Argentine codif., Art. 2632 (alternative references to the laws of the
domicile of the child or parent, or the place of celebration of the marriage) ; Uruguayan
draft codif., Art. 28 (alternative reference to the laws of (1) the matrimonial domicile
and, in the absence of such domicile, the mother’s domicile, (2) the child’s domicile if
the child has reached majority, or habitual residence if the child is a minor), and (3) the
defendant’s domicile).
899. See Albanian codif., Art. 28 (alternative references to the laws of the child’s
nationality at birth, nationality, or habitual residence at time of establishment ; and the
law governing the parents’ personal relationship) ; Bulgarian codif., Art. 83 (same) ;
Montenegrin codif., Art. 87 (same).
900. See Lithuanian codif., Art. 1.31 (alternative reference to the laws of the child’s
nationality or domicile, or the nationality or domicile of either parent) ; Turkish codif.,
Art. 16 (alternative references to the laws of the child’s nationality, habitual residence,
or place of birth ; the national law of either parent ; or the law of the parents’ common
habitual residence).
is more favourable to the protection of the weaker party’s rights and

interests” 901.
Finally, reflecting the changing social mores on this issue, the latest
codification of this period, the Dutch codification, contains a rule
(Article 93) that favours the contestation of legal filiation presumably in
favour of biological filiation. Article 92 provides that the establishment
of filiation is governed by the law of the common nationality of the
mother and the alleged father, and, in the absence thereof, the law of
their habitual residence or the law of the child’s habitual residence, in
that order. Article 93 provides that the annulment or denial of filiation
is governed by the same law, but if such
“a denial is not or no longer possible, the court may, where it is
in the best interest of the child and upon the joint application of
the parents and the child for such a purpose, apply another law
mentioned in Article 92 . . .” 902
3. Acknowledgment
The Swiss codification raises the number of potentially different

laws under which the acknowledgment of a child can be validly made
in Switzerland 903, or under which an acknowledgment or legitimation
made abroad may be recognized in Switzerland, to six choices 904. The
Puerto Rico draft provides for acknowledgment under four different
laws 905 ; the Argentenian and Dutch codifications under three 906 ; and

903. See Swiss codif., Art. 72. These laws include the law of the child’s habitual
residence or nationality, or the law of the domicile or nationality of either parent. The
same article provides that the contestation of acknowledgment is governed exclusively
by Swiss law. See also Italian codif., Art. 35 (acknowledgment, wherever made, is
governed by the national law of the child or of the acknowledging parent, whichever is
more favourable to acknowledgment).
904. See Swiss codif., Arts. 72-73.
905. See Puerto Rico Draft codif., Art. 16 (the four choices include the laws of
the state in which the act of acknowledgment took place, the state in which either
the acknowledging parent or the child was domiciled, or any other state whose law is
applicable under the Code’s general principles).
906. See Argentinean codif., Art. 2633 (alternative references to the laws of the
domicile of the child at either the time of birth or the time of acknowledgment, or the
domicile of the acknowledging parent, whichever favours acknowledgment) ; Dutch
codif., Art. 95 (acknowledging parent’s nationality, the child’s habitual residence,
or the parent’s habitual residence, with intermediate solutions in cases of multiple
nationalities).
the Polish, Japanese, and Taiwanese codifications under two laws,

whichever favours the acknowledgment 907.
4. Adoption
The Belgian experience with adoption offers another example of

material justice considerations making inroads into conflicts justice in
a country known for its strong adherence to the classical view. Belgian
courts repeatedly manipulated a 1969 law that required compliance
with the national laws of both parents for a valid adoption. In 1987,
that law was replaced with one which favours adoption, by providing
that compliance with either the national law of the adopting parent, or
with Belgian law, suffices for a valid adoption in Belgium by parties
maintaining stable Belgian connections 908. The PIL codification of 2004
provides that the conditions for adoption are governed by the personal
law of “the adopter or both adopters”, but authorizes secondarily the
application of Belgian law if the foreign law is “clearly harmful to the
higher interest of the adoptee”, and either the adoptee or the adopters
have certain contacts with Belgium 909.
Czechoslovakia adopted a similar solution, which remains in effect
in Slovakia 910 and (with slight amendment) in the Czech Republic 911,
as did the German and later the Dutch codifications 912. The Inter-
American Convention on Conflict of Laws concerning Adoption
907. See Polish codif., Art. 55.3 (alternative reference to the law of the child’s
nationality at either the time of birth or at the time of acknowledgment) ; Japanese codif.,
Art. 29 (the child’s or acknowledging parent’s nationality at time of acknowledgment) ;
Taiwanese codif., Art. 53 (same).
908. See M. Fallon and J. Meeusen, “Belgian Report”, in Symeonides, Progress or
Regress ? 110-111.
909. Belgian codif., Art. 67. See also ibid., Art. 68 (providing that consent to adoption
is governed by the law of the adoptee’s habitual residence, but also authorizing the
application of Belgian law if the foreign law does not require consent or does not know
the institution of adoption). Belgian codif., Art. 62 (providing that filiation by voluntary
act is governed by the law of nationality, but if such law does not require consent, the
law of habitual residence governs).
910. See Slovak codif., Art. 26.3 (providing that if the applicable law does not
permit adoption or does so under “extremely difficult conditions”, forum law shall be
applied, provided that the adoptee, or at least one of the adopting spouses, have lived in
the forum state for a “substantial period of time”).
911. See Czech codif., Art. 61 (same as the Slovak Article 26.3, except that Czech
law applies if at least one of the adopting spouses or the adoptee is “habitually resident”
in the Czech Republic, regardless of how long).
912. See German codif., Art. 23 (providing that the necessity and the granting of
consent to adopt is governed by the child’s national law, but “[if] the best interest of
the child so requires, German law shall be applied instead”) ; Dutch codif., Art. 105
(providing that a parent’s consent to adoption of his or her child is governed by the
of Minors provides that the law of the domicile of “the adopter [or
adopters]” governs the requirements for adoption, unless that law
imposes “manifestly less strict” requirements than the law of the
adoptee’s habitual residence, in which case the latter law applies 913. In
contrast, the Lithuanian codification applies the law of the adoptee’s
domicile, but allows the application of the law of the adopter’s domicile
or nationality under certain conditions, “if this will not prejudice the
best interest of the child” 914.
5. Marriage (favor matrimonii)
Until the middle of the twentieth century, most countries imposed

strict requirements on the substantive validity of marriage and on the
granting of divorce. PIL conformed to those restrictions, for example,
by requiring compliance with the requirements of the personal laws of
both prospective spouses, applied cumulatively, and applying the law
of the spouses’ common domicile or nationality to the requirements
for divorce. By the end of the twentieth century, the substantive law of
most countries had become more liberal, and so has PIL.
Regarding marriage, the notion of favor matrimonii has gained wider
acceptance and is pursued through choice-of-law rules with alternative
connecting factors 915. With regard to the form of a marriage, the most
generous rule is probably Article 22 of the Chinese codification.
Article 22 provides that a marriage is valid as to form if it complies
with the requirements of the lex loci celebrationis, the lex patriae, or
the law of the habitual residence of one party 916. The corresponding
provisions of the Dominican Republic, Finland, Lithuania, and
Quebec give essentially the same, choices 917. The Italian and Qatari
codifications provide for slightly narrower, or at least more specific,
choices (alternative validation references to the lex loci celebrationis,
child’s national law, but, if that law “does not recognize the concept of adoption, Dutch
law applies”).
913. Inter-American Convention on Conflict of Laws concerning Adoption of
Minors, Art. 4. The Convention’s text is available at http ://www.oas.org/juridico/
english/treaties/b‑48.html. The Convention is in force in Belize, Brazil, Chile,
Colombia, Honduras, Mexico, Panama, and Uruguay.
914. Lithuanian codif., Art. 1.33.
915. For general discussion, see D. Coester-Waltjen, “Marriage”, in J. Basedow et
al. (eds.), Encyclopedia of PIL (2017).
917. See Dominican Rep. codif., Art. 41 ; Finnish Marriage Act, Art. 115 ; Lithuanian
codif., Art. 1.26 ; Quebec codif., Art. 3088.
the national law of either spouse, or the law of their common habitual
residence) 918. Also narrower are the corresponding provisions of : the
Polish codification (lex loci celebrationis, or the law of the spouses’
common nationality, domicile, or habitual residence) 919 ; the Japa-
nese and Taiwanese codifications (lex loci celebrationis or the natio-
nal law of either spouse) 920 ; and the Austrian, Jordanian and UAE
codifications (lex loci celebrationis or the personal law of each
spouse) 921.
With regard to substantive requirements, the Swiss codification
provides that a marriage between foreigners in Switzerland is considered
valid, if it conforms to the substantive requirements prescribed by
Swiss law or by the national law of either spouse 922. The corresponding
German provision begins by requiring compliance with the national
law of each prospective spouse, but if neither law allows the marriage,
German law applies if either spouse is a resident or citizen of Germany
and the foreign law is “incompatible with freedom of marriage” 923.
The Albanian and Bulgarian codifications follow a similar approach 924,
as does the Romanian codification to a lesser extent 925. The Austrian
codification subjects the personal legal effects of marriage and of
registered domestic partnership to the spouses’ common personal law,
918. Italian codif., Art. 28 ; Qatari codif., Art. 14.

919. See Polish codif., Art. 49.2 (applicable to marriages concluded outside Poland).
920. See Japanese codif., Art. 24 ; Taiwanese codif., Art. 46. See also Taiwanese
codif., Art. 45.1 (giving the same choices for the law governing marriage engagements).
921. Austrian codif., Art. 16 ; Jordanian codif., Art. 13.2 ; UAE codif., Art. 12.2 ; see
also Louisiana codif., Art. 3520 and Puerto Rico draft codif., Art. 11 (applicable to both
formal and substantive validity, and providing alternative validation reference to the lex
loci celebrationis, and the state where the parties were first domiciled as husband and
wife, subject to a public policy limitation).
922. Swiss codif., Art. 44. The corresponding Dutch provision (Art. 28) allows
compliance with either Dutch law (if one of the spouses is a Dutch citizen or habitual
resident), or the national law of each spouse.
923. German codif., Art. 13. This article also provides that the prospective spouses
must have taken reasonable steps to comply with their national law. The article also
gives examples of foreign laws that violate the principle of freedom to marry, by
providing that
“a marriage shall not be prevented by a previous marriage of either engaged
person, if the validity of the previous marriage has been set aside by a decision
made or recognized within the country, or, if the spouse of either engaged person
has been declared dead”.
924. See Albanian codif., Art. 21 ; Bulgarian codif., Art. 76.
925. See Romanian codif., Art. 2856 (providing that if a foreign law imposes an
impediment to the marriage that is incompatible with the right to marry under Romanian
law, the impediment may not prevent a marriage in Romania if one of the prospective
spouses is a Romanian citizen).
but if the marriage is not valid or the partnership is not given legal
effect under that law, Austrian law governs 926.
The Dutch codification adopts a more complex scheme designed
to ensure that marriages having both foreign and Dutch contacts
will conform to certain Dutch substantive conceptions of marriage.
Article 28 provides that a marriage will be solemnized if : (a) each
spouse meets the requirements of Dutch law and one of them has
Dutch nationality or a Dutch habitual residence ; or (b) each spouse
meets the requirements of his or her national law. However, Article 29
introduces several exceptions to the application of foreign law under
item (b) above. It prohibits a marriage : if the prospective spouses have
not reached the age of fifteen, or if they are related within the second
degree by birth or adoption ; if the free consent of a prospective spouse
is lacking ; or if one spouse is party to an existing marriage or registered
partnership. Conversely, Article 29 provides that the solemnization of
a marriage may not be refused because of an impediment imposed by
the national law of one of the future spouses that is contrary to Dutch
public policy 927.
At the other end of the spectrum, the Gabonese codification also
begins with the principle that the national law of each prospective
spouse governs the substantive requirements of marriage, but provides
that a foreigner who acquires Gabonese nationality may opt for
polygamy 928. Additionally, if the otherwise applicable foreign law
prohibits a marriage because of an impediment that violates Gabonese
public policy, the marriage may be solemnized in Gabon if the marriage
would meet the requirements of Gabonese law 929.
States that allow same-sex marriages, or unions often called “regis-
tered partnerships”, accord them the same pro-validation treatment as
traditional marriages 930. For example, the Dutch codification provides
926. See Austrian codif., Arts. 18 and 27b. Article 17 (2) provides that if the marriage
was dissolved or annulled by a judgment recognizable in Austria, a new marriage may
not be prohibited solely because the personal law of one or both of the spouses does
not recognize the judgment. For a similar provision, see Estonian codif., Art. 56 (3).
930. For general discussion, see K. Boele-Woelki and A. Fuchs (eds.), Legal
Recognition of Same-Sex Relationships in Europe (2012) ; A. Bonomi and B. Cottier
(eds.), Aspects de droit international privé des partenariats enregistrés en Europe
(2004) ; D. Gallo, L. Paladini and P. Pustorino (eds.), Same-Sex Couples before National,
Supranational and International Jurisdictions (2014) ; C. Gonzáles Beilfuss, Parejas
de hecho y matrimonios del mismo sexo (2004) ; G. Goldstein, “La cohabitation hors
mariage en droit international privé”, 320 Recueil des cours 9 (2006) ; C. Karakosta,
that Dutch law governs the capacity of each partner to enter into a
registered partnership in the Netherlands, even in the absence of any
other Dutch connection 931. The Belgian codification provides that
the national law of each prospective spouse governs the substantive
requirements of marriage, but if one of those laws prohibits same-
sex marriages, that law shall not be applied if the other spouse is a
national of, or maintains a habitual residence in, a state allowing such
marriages 932. France and Spain have arrived at similar results through
judicial or administrative decisions 933. It is a question of time until all
countries that allow same-sex marriages will extend to them the same
favor matrimonii principle applied to traditional marriages 934.
6. Divorce (favor divortii)
The liberalization of the substantive law of divorce in many

countries has led to a proliferation of pro-divorce choice-of-law rules
in those countries. These rules pursue a policy of favor divortii through
a variety of devices, such as : (1) applying the pro-divorce law of the
forum as either a principal or default choice ; (2) providing a list of
laws and authorizing the application of whichever allows divorce ; or
(3) allowing the parties to choose the applicable law (which can work
only in consensual divorces). The following are some examples :
– In the United States, the pro-divorce law of the forum applies to all
cases subject to its jurisdiction. This includes cases in which only
the plaintiff is domiciled in the forum state, as well as cases which
neither spouse is domiciled in the forum state if the defendant files
an appearance 935.
– In Finland, courts have jurisdiction to grant a divorce under Finland’s
pro-divorce law if the plaintiff “has been” domiciled in Finland or
otherwise has a “close link” to Finland and he or she cannot without
“Portability of Same-Sex Marriages and Registered Partnerships within the EU”, 2 (1)
Cyprus Hum. Rts. L. Rev. 53 (2013).
933. See W. Pintens and J. M. Scherpe, “Same-Sex Marriages”, in J. Basedow et al.
934. See Bogdan, “Law of the Forum”, 78 (“[T]he treatment under substantive
family law of de facto cohabitation as a legitimate stable family form with important
legal effects will probably lead to the adoption of a conflict rule on its legal effects that
is similar to the conflict rule regarding the legal effects of marriage”).
“unreasonable inconvenience” obtain a divorce in the foreign state

where either spouse is domiciled 936.
– The codifications of Romania and the Dominican Republic allow
spouses to choose the law that will govern their divorce from among
the laws of six and five states, respectively 937.
– The Chinese codification distinguishes between divorce “by
litigation” and divorce “by agreement”. The law of the forum
governs the former 938, but with regard to the latter, the parties may
agree to the application of the law of either party’s habitual residence
or nationality 939.
– The Dutch codification provides that Dutch law governs the
requirements for a divorce or termination of a registered partnership,
and that the law of a common foreign nationality of the spouses or
partners applies only exceptionally 940.
– The Belgian and Serbian codifications preclude the application of a
foreign law that prohibits divorce, and also allow the parties to opt
for the application of the law of the forum 941.
– The codifications of Albania, Bulgaria, Estonia, the Czech
Republic, Germany, Lithuania, Montenegro, Slovakia, Slovenia,
and Switzerland provide that the lex fori displaces the otherwise
applicable foreign law, if that law does not allow or severely restricts
936. Finnish Marriage Act, Arts. 119 (2), 120.

937. Article 2597 of the Romanian codification allows for the following choices :
the laws of the spouses’ common habitual residence at the time of the agreement ; their
last common habitual residence, provided one of them still lives there ; a state where the
spouses lived for at least three years ; the national law of either spouse ; or Romanian
law. Article 47 of the Dominican Republic codification allows the same choices, except
the law of the state where the spouses lived for at least three years.
939. Chinese codif., Art. 26. In the absence of such an agreement, the law of the
parties’ common habitual residence applies and, in the absence thereof, the law of their
common nationality, and, in the absence thereof, the law of the forum.
940. See Dutch codif., Arts. 56 (for marriages), and 87 (for partnerships). The law of
the foreign common nationality may be applied only upon a joint petition of the spouses
or partners, or the petition of one of them if there exists a “real societal connection”
with the state of the common nationality.
941. See Belgian codif., Art. 55. This article provides that divorce is governed by
the law designated in a priority list of four laws, the last of which is the law of the
forum as such. The article also provides, however, that : (a) if the applicable foreign law
does not allow divorce, then the law next in line applies, so long as it allows divorce ;
and (b) the parties can always agree to the application of the law of their common
nationality, or the law of the forum. The Belgian codification also contains a special rule
(Art. 57) regarding the narrow conditions under which a foreign unilateral repudiation
of a marriage by the husband (talaq) may be recognized in Belgium. Articles 81-83 of
the Serbian draft codification and Articles 85-86 of the Montenegrin codification are
substantively similar.
divorce, and if one of the spouses is a citizen or domiciliary of the

forum state 942.
– The codifications of Austria, Estonia, Hungary, Italy, North Korea,
Spain, and Uruguay also favour divorce through alternative reference
rules 943.
Finally, the Rome III Regulation, which is in force in 15 EU countries
including some of the countries mentioned above 944, allows the parties
to choose the law applicable to divorce from a list of five potentially
different laws, one of which is the law of the forum 945. In the absence of
such an agreement (which is not very likely in contested divorce cases),
these same five laws apply in priority order 946. However, Rome III also
provides that, if the applicable law does not allow divorce or “does not
grant one of the spouses equal access to divorce or legal separation
942. See Albanian codif., Art. 25 ; Bulgarian codif., Art. 82 ; Czech codif.,
Art. 50.2 ; Estonian codif., Art. 60 (2) ; German codif., Art. 17 ; Lithuanian codif.,
Art. 1.29 ; Montenegrin codif., Art. 85.4 ; Slovak codif., Art. 22 ; Slovenian codif.,
Art. 37 ; Swiss codif., Art. 61.
943. See Austrian codif., Art. 20 (providing that if the law governing personal effects
of marriage does not allow for divorce, then divorce shall be judged according to the
plaintiff’s personal law) ; Hungarian codif., Art. 41 (a) (a marriage can be dissolved
under the lex fori, even if the applicable foreign law does not allow dissolution) ;
Italian codif., Art. 31 (divorce is governed by the law common to both spouses and,
in the absence of such commonality, by the law of the state “in which the matrimonial
life is mainly located”, but if that law does not allow divorce or separation, Italian
law governs) ; North Korean codif., Art. 38 (North Korean law may displace the
otherwise applicable law if one spouse is a citizen and resident of North Korea) ;
Spanish codif., Art. 107 (Spanish law displaces otherwise applicable law under certain
narrow conditions) ; Uruguayan draft codif., Art. 26 (providing that, in the absence
of a common matrimonial domicile, the plaintiff can choose between the laws of the
domicile of either spouse).
944. See Council Regulation (EU) No. 1259/2010 of 20 December 2010 imple-
menting enhanced co-operation in the area of the law applicable to divorce and
legal separation (“Rome III”) OJ (L. 343) 10 et seq. (2010) (in force in Belgium,
Bulgaria, Germany, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary,
Malta, Austria, Portugal, Romania, and Slovenia). For general discussion, see
N. A. Baarsma, “European Choice of Law on Divorce (Rome III) : Where Did It Go
Wrong ?”, 27 Ned. Int’l PrivRecht 9 (2009) ; K. Boele-Woelki, “For Better or for Worse :
The Europanization of International Divorce Law”, 2 Ybk Priv. Int’l L. 11 (2010) ;
S. Corneloup (ed.), “Droit européen du divorce”, 39 Travaux du Centre de recherche
sur le droit des marchés et des investissements internationaux (2013) ; S. Peters,
“Divorce, European Style : The First Authorisation of Enhanced Cooperation”, 6 Eur.
Con. L. Rev. 339 (2010).
945. See Rome III, Art. 5. The five laws are : (a) the law of the spouses’ current
habitual residence ; (b) the law of the state in which the spouses last habitually resided,
in so far as one of them still resides there ; (c) the national law of either spouse ; and
(d) the law of the forum. For a similar provision, see Dominican Rep. codif., Art. 47.
946. See Rome III, Art. 8. The only difference is that the law of the state in which
the spouses were last habitually resident applies only if the period of residence did not
end more than one year before the court is seised.
on grounds of their sex”, the law of the forum applies 947. It should

be noted that, under the applicable jurisdiction rules of the Brussels II
Regulation, the plaintiff has wide latitude in choosing a forum, and
that in some cases, the chosen forum may have no connection with the
defendant 948.
At the other end of the spectrum, until 1991 the Paraguayan
codification provided that (1) a marriage celebrated in Paraguay “is
not dissolved except by the death of one spouse” 949 ; (2) a marriage
celebrated abroad may not be resolved by divorce in Paraguay if the
spouses are domiciled there 950 ; and (3) a foreign dissolution by divorce
of a marriage celebrated in Paraguay does not entitle either spouse to
remarry except as provided by Paraguayan law 951.
Similarly, the Ecuadorian codification provides that : (1) when
either spouse is Ecuadorian, a marriage celebrated in Ecuador may
not be annulled or dissolved by divorce, except by a judgment issued
by Ecuadorian judges 952 ; (2) a marriage that can be dissolved under
the law of the place of celebration may not be dissolved in Ecuador
except in conformity with Ecuadorian law 953 ; and (3) the dissolution
of a marriage in a foreign country according to the laws of that country
does not enable either spouse to marry in Ecuador, until the marriage is
validly dissolved in Ecuador 954.
E. Rules favouring one party : choice of law by, or for the benefit of,
one party
By favouring the validity of a juridical act or a certain status, the

choice-of-law rules described above also favour, directly or indirectly,
the party or parties whose interests depend on the particular act or
status. Other rules are even more explicitly and directly designed to
benefit one of the parties to a legal dispute, such as a tort victim ; a
maintenance obligee ; a consumer ; an employee ; an insured ; or any
947. Rome III, Art. 10.

948. See Brussels II, Art. 3. One of the plaintiff’s choices is the plaintiff’s habitual
residence, provided such residence began at least one year immediately before the
filing of the action, or six months if the plaintiff is also a national of the forum state.
949. Paraguayan codif., Art. 163. In 1991, this article was amended to allow divorce
for the first time. See Article 22 of Law No. 45 of 1991.
950. Paraguayan codif., Art. 164.
951. Ibid., Art. 165.
952. Ecuadorian codif., Art. 129.
953. Ibid., Art. 93.
954. Ibid., Art. 92.
other party whom the legal order considers weak, or whose interests are
considered worthy of protection.
This presumptively weaker party is favoured through one or more of
the following means : (1) empowering that party, either before or after
the events giving rise to the dispute, to choose the applicable law from
among the laws of more than one state, or allowing the court to choose
for that party’s benefit ; or (2) protecting the party from the adverse
consequences of a potentially coerced or uninformed choice-of-law.
These means are described below.
1. Pre-dispute choice by one party

Rules that grant one party 955 the right to select the applicable law
are par excellence result-oriented because that party is likely to choose
the law that he or she considers best. Although this is clearer when the
choice is exercised after the dispute (see below), it is also true when the
choice is made in advance, as in the case of testate succession.
Indeed, a testator chooses a law to govern his or her succession for
certainty and peace of mind, but she chooses a particular law, in large
part, because of the substantive solutions it ensures, e.g., avoiding forced
heirship. Rules mandating the enforcement of such an election reflect
a societal substantive choice favouring of testamentary freedom, at the
expense of other substantive succession policies, such as protecting
heirs 956.
In this sense, the new choice-of-law rules that allow a testator to
select the law to govern his or her succession provide another example
of a recent concession to material justice considerations. Such rules are
found in the Hague Convention on the Law Applicable to Trusts 957,
the Hague Convention on the Law Applicable to Estates 958, the
European Union’s Successions Regulation (Rome IV) 959, the Uniform
955. Rules that allow both parties to a bilateral act (such as an ordinary contract) to
pre-select the applicable law should not be considered result-oriented (although they
are content-oriented), because they are motivated primarily (or at least as much) by
conflicts-justice considerations as by material-justice considerations. See Symeonides,
Progress or Regress ? 38-39.
956. See A. Bonomi, “Testamentary Freedom or Forced Heirship ? Balancing Party
Autonomy and the Protection of Family Members”, 2010 Nederl. Int’l Priv. 605 (2010).
957. See Art. 6 of the Hague Convention of 1 July 1985 on the Law Applicable to
Trusts and on Their Recognition. This convention is in force in Australia, Canada, Italy,
Luxembourg, Malta, Monaco, the Netherlands, Switzerland, and the United Kingdom.
958. See Art. 5 of the Hague Convention of 1 August 1989 on the Law Applicable to
Succession to the Estates of Deceased Persons. This convention is not in force.
959. See Rome IV, Art. 22.
Probate Code in the United States 960, as well as the codifications of

many countries, including : Albania, Azerbaijan, Armenia, Belarus,
Belgium, Bulgaria, Burkina Faso, Estonia, Italy, Kazakhstan, South
Korea, Kyrgyzstan, Liechtenstein, Moldova, Montenegro, Netherlands,
Poland, Puerto Rico, Quebec, Romania, Serbia, Switzerland, Tajikistan,
Ukraine, and Uzbekistan 961. Indeed, the acceptance of the principle
of party autonomy in the law of successions has been sufficiently
widespread to give credence to the claim that it can be “a starting point
for a global consensus” 962.
To be sure, this result selectivism is not unlimited, because in all of
these codifications the testator’s choice of law is subject to geographical
and substantive limitations. In some codifications, however, these
limitations are very loose or non-existent. For example, a New York
statute imposes no substantive and virtually no geographic limitations
on the testator’s choice of law. The statute provides that, with regard to
immovable or movable property situated in New York, a testator with
no other connection to that state may elect New York law to govern
“the intrinsic validity, including the testator’s general capacity, effect,
interpretation, revocation or alteration of any such disposition” of the
New York property 963. In so providing, the statute enables a foreign
testator who deposits money in a New York bank to evade the laws
of their own countries. The statute is clearly result-selective. The
validation of the testament is simply a means to an end ; that the end is
far from laudable is another matter.
2. Post-dispute choice by one party

Result selectivism is even more prevalent in choice-of-law rules that
allow one party to choose the applicable law after the events giving
960. Uniform Probate Code, § 2-703.

961. See Albanian codif., Art. 33.3 ; Armenian codif., Art. 1292 ; Azerbaijan codif.,
Art. 29 ; Belarus codif., Arts. 1133, 1135 ; Belgian codif., Arts. 79 (testaments), and
124 (trusts) ; Bulgarian codif., Art. 89 ; Burkina Faso codif., Art. 1044 ; Estonian codif.,
Art. 25 ; Italian codif., Arts. 46 (successions), and 56 (donations) ; Kazakhstan codif.,
Art. 1121 ; South Korean codif., Art. 49 ; Kyrgyzstan codif., Art. 1206 ; Liechtenstein
codif., Art. 29.3 ; Moldovan codif., Art. 1624 ; Montenegrin codif., Art. 72 ; Dutch
codif., Art. 145 ; Polish codif., Art. 64.1 ; Puerto Rico draft codif., Art. 48 ; Quebec
codif., Arts. 3098-3099 ; Romanian codif., Art. 2634 ; Serbian draft codif., Art. 104 ;
Swiss codif., Arts. 90 (2), 91 (2), 87 (2), 95 (2) (3) ; Tajikistan codif., Arts. 1231-1232 ;
Ukrainian codif., Art. 70 ; Uzbekistan codif., Art. 1197.
962. C. Roodt, “Party Autonomy in International Law of Succession : A Starting
Point for a Global Consensus”, 2 J. So. African L. 241 (2009).
963. New York Estate Powers and Trusts Law, § 3-5.1 (h) (emphasis added).
rise to the dispute, such as in cross-border torts in which conduct in one

state caused injury in another.
(a) Victim’s choice in cross-border torts and products liability

As extensively documented in another publication 964, many recent
codifications allow the victim of a cross-border tort to choose between
the laws of the place of the injurious conduct and the place of the
resulting injury. For example, Article 40 (1) of the German codification
provides, in part :
“Claims arising from tort are governed by the law of the state
in which the person liable to provide compensation acted. The
injured person may demand, however, that the law of the state
where the result took effect be applied instead.” 965
Article 62 of the Italian codification provides the reverse – that torts
are governed by the law of the state of injury but “the person suffering
damage may request the application of the law of the State in which the
event causing the injury took place” 966.
(1) All cross-border torts

Like the German and Italian codifications, seven other codifications
give this choice in all cross-border torts, including those of Estonia,
FYROM, Lithuania, Oregon, Tunisia, Uruguay, and Venezuela 967.
(2) Products liability

Sixteen codifications, and one international convention in force in
11 countries, provide that in products liability conflicts, the victim may
choose the applicable law within certain parameters. Specifically :
– The codifications of Italy, Quebec, Switzerland, and Turkey allow the
victim to choose from among the laws of either (a) the tortfeasor’s
place of business or habitual residence, or (b) subject to a proviso,
the place in which the product was acquired 968.
964. See Symeonides, Codifying Choice of Law 59-67, 96-98.

965. German codif., Art. 40 (1).
966. Italian codif., Art. 62 (1).
967. See Estonian codif., Art. 50 ; FYROM codif., Art. 33 ; Lithuanian codif.,
Art. 1.43 (1) ; Tunisian codif., Art. 70 ; Uruguayan draft codif., Art. 52 (1) ; Venezuelan
codif., Art. 32 ; Or. Rev. Stat., § 15.440 (3) (c).
968. See Italian codif., Art. 63 ; Quebec codif., Art. 3128 ; Swiss codif., Art. 135 (1) ;
Turkish codif., Art. 36.
– The codifications of Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan,

Russia, Tajikistan, Ukraine, and Uzbekistan add the plaintiff’s
domicile to these choices 969.
– The codifications of Tunisia and Taiwan add the state of injury to the
victim’s choices 970.
– The Moldovan codification allows plaintiffs to choose between the
laws of their home state, and those of the place of the product’s
acquisition 971.
– The Chinese codification provides for the application of the law of
the state of the victim’s habitual residence, unless the defendant has
not conducted related business in that state, in which case the victim
may choose between the laws of the state of injury, or the defendant’s
principal place of business 972.
– The Hague Convention on the Law Applicable to Products Liability
allows the plaintiff to choose between the laws of the tortfeasor’s
principal place of business and the law of the place of injury, if
certain contingencies are met 973.
(3) Other cross-border torts
The following 12 codifications and Rome II, which is in force in

28 countries, allow the victim to choose the applicable law in the
cross-border torts shown in parentheses :
– Albania (environmental torts, infringement of rights of personality,
and certain cases involving anti‑competitive restrictions) 974 ;
– Belgium (defamation) 975 ;
969. See Azerbaijan codif., Art. 27 ; Belarus codif., Art. 1130 ; Kazakhstan codif.,
Art. 1118 ; Kyrgyzstan codif., Art. 1203 ; Russian codif., Art. 1221 ; Tajikistan codif.,
Art. 1227 ; Ukrainian codif., Art. 50 ; Uzbekistan codif., Art. 1195.
970. See Tunisian codif., Art. 72 ; Taiwanese codif., Art. 26 (providing for the same,
except that the victim’s choice includes the law of nationality, rather than domicile, of
either the tortfeasor or the victim).
971. See Moldova codif., Art. 1618.
972. See Chinese codif., Art. 48.
973. See Arts. 6 and 4-5 of the Hague Convention on the Law Applicable to
Products Liability (1973). For the text of the convention, see http ://www.hcch.net/
index_en.php ?act=conventions.statusandcid=84. This convention is in force in Croatia,
Finland, FYROM, France, Luxemburg, Montenegro, the Netherlands, Norway, Serbia,
Slovenia, and Spain.
974. See Albanian codif., Arts. 66.2, 67, 64.5.
975. See Belgian codif., Art. 99 (2)-(1) (allowing plaintiff to choose between
the laws of the state of conduct and, subject to a foreseeability proviso, the state of
injury).
– Bulgaria (defamation, environmental torts, and direct action against

insurer) 976 ;
– Dominican Republic (environmental torts) 977 ;
– Moldova (injury to rights of personality) 978 ;
– Montenegro (environmental torts and restrictions of competition) 979 ;
– Poland (injury to rights of personality) 980 ;
– Romania (invasion of privacy and violation of rights of personality) 981 ;
– Rome II and all countries to which it applies (environmental torts,
direct actions against insurers, and certain cases involving anti-
competitive restrictions) 982 ;
– Serbia (environmental torts and defamation) 983 ;
– Switzerland (cases involving emissions and injury to rights of
personality) 984 ;
976. See Bulgarian codif., Arts. 108 (defamation, victim’s choice among laws of
victim’s or tortfeasor’s habitual residence, or place of injury), 109 (environmental torts,
victim’s choice between laws of place of conduct or place of injury), and 116 (direct
action against insurer, victim’s choice between the law that governs the tort and the law
that governs the insurance contract).
977. See Dominican Rep. codif., Art. 74. In product liability conflicts, Article 71 of
the same codification provides for the alternative application of laws of the places of
the victim’s habitual residence or injury, or the defendant’s establishment. The first two
choices are subject to a proviso that the product was marketed in the particular state.
978. See Moldova codif., Art. 1617 (injury to rights of personality, victim may
choose from among the laws of the victim’s or defendant’s domicile, or the place of
injury).
979. See Montenegrin codif., Arts. 54, 53.
980. See Polish codif., Art. 16 (victim’s choice between the laws of state of conduct
and state of injury).
981. See Romanian codif., Art. 2642 (allowing a victim to choose between the
laws of the defendant’s habitual residence and, subject to a foreseeability proviso, the
plaintiff’s habitual residence or the state of injury).
982. See “Rome II”, Arts. 7 (environmental torts, applying the law of the state of
injury unless the plaintiff opts for the law of the place of conduct), 6 (3) (b) (allowing
the plaintiff to choose between the otherwise applicable law and the law of the forum,
in certain cases involving anti-competitive restrictions), and 18 (authorizing a direct
action against the insurer if such action is allowed by either the law applicable to the
tort or the law applicable to the insurance contract).
983. See Serbian draft codif., Arts. 165 (applicable to environmental torts, allowing
a victim to choose between the laws of the state of conduct and the state of injury), and
170 (applicable to defamation, allowing plaintiff to choose between the laws of the
defendant’s habitual residence and, subject to a foreseeability proviso, the states of the
victim’s domicile or injury). See also Serbian draft codif., Art. 164 (applicable to cases
involving anti-competitive restrictions ; allowing choice of forum law if the forum’s
market is one of the affected markets).
984. See Swiss codif., Arts. 138 (applicable to emissions, allows a victim to choose
between the laws of the state of conduct and the state of injury), and 139 (injury to
rights of personality, giving victims a choice from among the laws of the tortfeasor’s
habitual residence or place of business and, subject to a foreseeability defence, the
victim’s habitual residence or the place of the injury).
– Taiwan (unfair competition and direct actions against tortfeasor’s

insurer) 985 ; and
– Turkey (defamation and direct actions against insurer) 986.
(b) Choice by owner of stolen property
The codifications of Albania, Belgium, Bulgaria, Montenegro,

Romania, and Serbia extend the right of post-dispute choice by one party
to the owner of stolen cultural property. These codifications provide
that a state seeking to recover cultural property illegally exported from
its territory, may choose between its own law and the law of the state
in which the property is found at the time of the claim 987. The Belgian
and Romanian codifications give the same choices to the owner of other
stolen goods 988.
(c) Choice by unwed mother
Finally, the Czech codification grants an unwed mother a choice of

law in disputes with the child’s father. The applicable law is the law of
the mother’s habitual residence at the time of the child’s birth, unless
the mother opts for the law of her nationality. If the child is not yet born,
the mother may choose between the laws of her habitual residence and
her nationality at the time of filing the petition 989.
985. See Taiwanese codif., Arts. 27 (unfair competition : choice between the law
governing the tort or the contract, if any), and 29 (choice between the law governing
the tort and the law governing the insurance contract).
986. See Turkish codif., Arts. 35 (applicable to defamation, allowing a plaintiff to
choose between the laws of the defendant’s habitual residence or place of business and,
subject to a foreseeability proviso, the state of the victim’s domicile or injury), and
34 (4) (applicable to direct actions against the tortfeasor’s insurer, providing that the
action will be allowed if it is allowed by either the law governing the tort or the law
governing the insurance contract).
987. See Albanian codif., Art. 40 ; Belgian codif., Art. 90 ; Bulgarian codif., Art. 70 ;
Montenegrin codif., Art. 33 ; Romanian codif., Art. 2615 ; Serbian draft codif., Art. 121.
Except for the Bulgarian codification, these codifications provide that, if the claimant
state chooses its own law, and that law does not grant any protection to good faith
possessors, the defendant may invoke the protection accorded such possessors by the
law of the state in which the property is located at the time of the claim.
988. See Belgian codif., Art. 92 ; Romanian codif., Art. 2615. The Romanian
codification also provides in Article 2616 that acquisitive prescription is governed by
the law of the state in which the thing was located at the beginning of the applicable
prescriptive period. However, if the thing is moved to another state in which the
prescriptive period expires, the owner may request the application of the law of the
latter state.
989. See Czech codif., Art. 59.1.
3. Post-dispute choice by the court
Allowing one party to choose the applicable law after the dispute
has arisen is simply the most direct and overt way of favouring that
party.
A less direct but equally overt way is when a legislature chooses
in advance the party that needs particular protection, and formulates
choice-of-law rules requiring the court to apply the law providing such
protection.
This section discusses these rules.
(a) Court choice for the benefit of tort victims
Several codifications favour the victim of a cross-border tort through

choice-of-law rules that require courts to choose the law that most
favours the victim, from the laws of the state of conduct and the state
of injury.
For example, as early as 1966, the Portuguese codification provided
that cross-border torts are governed by the law of the state of conduct,
except when that law does not hold the actor liable but the law of
the state of injury does. In such a case, the law of the state of injury
governs “provided the actor could foresee the occurrence of injury in
that country as a consequence of his act or omission” 990.
Since then, 20 other codifications have adopted the same rule. For
example, the Croatian codification provides that torts are governed by
the law of the place of conduct or the law of place of injury, “depending
on which is most favourable for the injured party” 991. Similar rules are
found in the codifications of the former Portuguese colonies of Angola,
Cape Verde, East Timor, Guinea-Bissau, Macau, and Mozambique 992,
as well as in the codifications of Georgia, Hungary, Peru, and Slo-
venia 993.
Moreover, seven other codifications contain rules which have been
interpreted as authorizing, or which are capable of producing, the
990. Portuguese codif., Art. 45 (2).

991. Croatian codif., Art. 28.1.
992. See Angola codif., Art. 45.2 ; Cape Verde codif., Art. 45.2 ; East Timor codif.,
Art. 44.2, Guinea-Bissau codif., Art. 45.2 ; Macau codif., Art. 44.2 ; Mozambique
codif., Art. 45.2.
993. See Georgian codif., Art. 42.1 ; Hungarian codif., Arts. 33 (2), 33 (4), and 10 (3) ;
Peruvian codif., Art. 2097 (2) ; Slovenian codif., Art. 30 (1).
same pro-victim result for all issues in all cross-border torts 994. Two
codifications mandate the same result for conduct regulation issues 995.
(b) Court choice for the benefit of maintenance obligees
In areas other than tort, choice-of-law rules expressly designed to

favour one party are common in domestic relations matters. In addition
to the rules involving status discussed earlier, other rules of this kind are
those which authorize a court to choose, in child and spousal support
disputes, the law most favourable to the obligee from among several
laws.
One example is Article 18 of the German codification, which, subject
to certain qualifications, allows a choice of the law most favourable to the
maintenance obligee, from among the laws of (a) the obligee’s habitual
residence, (b) the common nationality of the obligor and of the obligee,
and (c) the law of the forum. Other codifications, including those of
Albania 996, Burkina Faso 997, Georgia 998, Montenegro 999, Spain 1000, and
Ukraine 1001, give the same choices to the court, while the French Civil
Code gives similar choices to the obligee directly 1002. Several countries
have identical or similar rules, including Belgium 1003, Bulgaria 1004,
994. See Symeonides, Codifying Choice of Law 62 (regarding the codifications

China, Japan, South Korea, Quebec, Russia, and Switzerland, as well as the Slovak and
Vietnamese codifications).
995. See Louisiana codif., Art. 3543 and Puerto Rico draft codif., Art. 40 (law of
state of conduct applies, unless injury occurred in another state imposing a higher
standard of conduct, and the occurrence of the injury in that state was objectively fore-
seeable).
996. See Albanian codif., Art. 26 (applicable law is that of the obligee’s habitual
residence, or the country of the common nationality and residence of the obligor and
obligee, but if those laws do not grant maintenance, then the lex fori governs).
997. See Burkina Faso codif., Art. 1041 (alternative references to laws of obligee’s
domicile, common national law of obligor and obligee, or Burkina Faso law).
998. See Georgian codif., Art. 48.1 (the applicable law is that of the obligee’s
habitual residence, or the country of common nationality and residence of the obligor
and obligee ; but if those laws do not grant maintenance, the lex fori governs).
999. See Montenegrin codif., Arts. 90-91 (alternative references to the law of the
obligee’s or the obligor’s habitual residence, their common nationality, and the lex fori).
1000. See Spanish codif., Art. 9.7.
1001. See Ukrainian codif., Art. 67.
1002. See French Civ. Code, Arts. 311-318.
1003. See Belgian codif., Art. 74 (the applicable law is that of the obligee’s habitual
residence, or the country of the common nationality of obligor and obligee, if the
obligor is habitually resident in that country. If those laws do not grant maintenance,
the law of common nationality applies ; but if that law does not grant maintenance, then
Belgian law governs).
1004. See Bulgarian codif., Art. 87 (alternative references to law of obligee’s habitual
residence or nationality, common national law of obligor and obligee, or Bulgarian law).
Estonia 1005, Hungary 1006, South Korea 1007, Lithuania 1008, Quebec 1009,

and Switzerland 1010.
The Argentinian codification provides that : (1) actions for (non-
spousal) maintenance may be brought, at the option of the obligee,
in (a) the courts of his or her domicile or habitual residence, (b) the
courts of the defendant’s domicile, or, (c) “if reasonable under the
circumstances”, in the courts of any place where the defendant has
assets 1011 ; and (2) that the court may apply the law of either the
obligee’s or the obligor’s domicile, whichever is more favourable to
the obligee 1012. The Uruguayan draft codification gives directly to the
maintenance obligee the option of choosing between the law of the
habitual residence of either the obligor or the obligee 1013. The Tunisian
codification allows the court to choose the law most favourable to the
obligee from among four potentially different laws. The four laws are
those of the obligee’s nationality or domicile, or the obligor’s nationality
or domicile 1014. The Chinese codification includes those four, but adds
the law of the state in which the maintenance property is situated 1015.
In the meantime, several international instruments have adopted the
same or similar pro-obligee choices 1016. Specifically :
– The 1956 Hague Convention on the Law Applicable to Maintenance
Obligations towards Children gives a choice between the lex fori and
the law of the child’s habitual residence 1017.
1005. See Estonian codif., Art. 61 (choice from among the laws of the forum, the
obligee’s habitual residence, or the common national law of the obligor and the obligee).
1006. See Hungarian codif., Art. 46 (with regard to the status, family relationships,
and maintenance rights of children living in Hungary, Hungarian law applies whenever
it is more favourable to the child than the otherwise applicable law).
1007. See South Korean codif., Art. 46 (1) (choice between laws of obligee’s
habitual residence and parties’ common national law).
1008. See Lithuanian codif., Art. 1.35.
1009. See Quebec codif., Art. 3094 (choice between the law of the domicile of the
obligee or the obligor).
1010. See Swiss codif., Arts. 49 and 83.
1011. Argentinean codif., Art. 2629.1.
1012. Argentinean codif., Art. 2630.1.
1013. See Uruguayan draft codif., Art. 29.
1015. See Chinese codif., Art. 29.
1016. For general discussion, see P. Beaumont et al. (eds.), The Recovery of
Maintenance in the EU and Worldwide (2014) ; L. Walker, Maintenance and Child
Support in Private International Law (2015).
1017. See Hague Convention of 24 October 1956 on the Law Applicable to
Maintenance Obligations towards Children, Arts. 1-3 (in force in the following
countries : Austria, Belgium, France, Germany, Italy, Japan, Liechtenstein, Luxembourg,
the Netherlands, Portugal, Spain, Switzerland, and Turkey).
– The 1973 Hague Convention on the Law Applicable to Maintenance

Obligations gives a sequential choice from among the laws of the
obligee’s habitual residence, or the common national law of the
obligor and the obligee, or the law of the forum 1018.
– The 1989 Inter-American Convention on Support Obligations
provides that the right to support is governed by the law of the
domicile or habitual residence of the creditor, or the law of the
debtor’s domicile or habitual residence, “whichever . . . [is] most
favorable to the creditor” 1019.
– The 1996 Hague Child Protection Convention gives the court a
choice between the law of the forum state and the law of another
state “with which the situation has a substantial connection”, but
only “in so far as the protection of the person or the property of the
child requires” 1020.
– The 2007 Hague Maintenance Protocol Convention 1021 and the 2009
EU Regulation on Maintenance 1022, which makes the Hague Pro-
tocol applicable throughout the European Union, provides for a
choice between the laws of the child’s habitual residence, the forum
state, or the state of the common nationality of the child and the
obligor 1023.
1018. See Hague Convention of 2 October 1973 on the Law Applicable to

Maintenance Obligations, Arts. 4-6. This Convention is in force in : Albania, Estonia,
France, Germany, Greece, Italy, Japan, Lithuania, Luxembourg, the Netherlands,
Poland, Portugal, Spain Switzerland, and Turkey.
1019. Inter-American Convention on Support Obligations, Art. 6 (in force in
Argentina, Belize, Bolivia, Brazil, Costa Rica, Ecuador, Guatemala, Mexico, Panama,
Paraguay, Peru, and Uruguay).
1020. See Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co‑operation in Respect of Parental Responsibility and
Measures for the Protection of Children, Art. 15. This Convention is in force in Albania,
Armenia, Australia, Austria, Bulgaria, Cyprus, Czech Republic, Denmark, Ecuador,
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Luxembourg, Malta,
Latvia, Lesotho, Lithuania, Monaco, Montenegro, Morocco, Netherlands, Poland,
Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine,
United Kingdom, and Uruguay.
1021. See Hague Protocol of 23 November 2007 on the Law Applicable to
Maintenance Obligations. The Protocol is in force in the European Union and in
Serbia.
1022. Council Regulation (EC) No. 4/2009 of 18 December 2008, on Jurisdiction,
Applicable Law, Recognition and Enforcement of Decisions and Co-operation in
Matters Relating to Maintenance Obligations, OJ (L. 7 of 10.1.2009, p. 1) (2009).
1023. See Hague Maintenance Protocol, Arts. 3-4. With regard to spouses, the
applicable law is the law of the obligee’s habitual residence, subject to an exception in
favour of the law of another state – in particular, the state of the spouses’ last common
habitual residence – if such other state has a “closer connection with the marriage”.
Hague Maintenance Protocol, Art. 5.
(c) Court choice for the benefit of children and other weak parties
The following are additional examples of choice-of-law rules

designed to accomplish the material result of protecting children or
other persons in need of protection, such as those under guardianship
or curatorship.
– The Belgian codification provides that parental authority and guar-
dianship are governed by the law of the state of the habitual residence
of the child or the person under guardianship, but if that law does
not provide sufficient protection, the law of that person’s nationality
governs. In either case, Belgian law applies if it is materially or
legally impossible to take the protective measures provided for by
the applicable foreign law 1024.
– The Argentinian codification provides that the law of the child’s
habitual residence governs matters of parental responsibility, but the
court may also consider, “to the extent required by the best interests
of the child” – the law of another state with which the situation has
“relevant connections” 1025.
– In guardianship proceedings, the Serbian codification authorizes the
court to deviate from the normally applicable law and apply a law
of another state “with which the situation is closely connected”, if
“necessary to protect the personality or property of the protégé” 1026.
– The Armenian codification provides that Armenian law displaces
the otherwise applicable foreign law, if it is more protective of a
person under guardianship or curatorship and living in Armenia 1027.
The codifications of Belarus, Kazakhstan, Moldova, Russia,
Tajikistan, and Ukraine provide the same with regard to persons
under guardianship or curatorship who live in those countries 1028.
The Chinese codification allows more choices, even if the person
under guardianship is not domiciled in China. The applicable law is
the law of the habitual residence, or the lex patriae of one party that
most favourably protects the rights and interests of the person under
guardianship 1029.

1025. Argentinean codif., Art. 2639.
1026. Serbian draft codif., Art. 51.2.
1027. Armenian codif., Art. 1268.
1028. See Belarus codif., Art. 1109 (3) ; Kazakhstan codif., Art. 1124.3 ; Moldova
codif., Art. 1595.4 ; Russian codif., Art. 1199.3 ; Tajikistan codif., Art. 1234 ; Ukrainian
codif., Art. 24.
– The Ukrainian codification provides that the duties of parents and

children are governed by the personal law of the child, or the law
of the country possessing a close connection to the relationship,
whichever is more favourable to the child 1030
. The Albanian
codification provides that the relationship between parents and their
child is governed by the law of the child’s nationality or habitual
residence, whichever is more favourable to the child 1031. The Chinese
codification provides that, in the absence of a common habitual
residence, the personal and property relationships between parents
and children are governed by “the law of habitual residence or the
lex patriae of one party that most favourably protects the rights and
interests of the weaker party” 1032.
– The Dutch codification provides that, if a spouse enjoys a benefit
resulting from the application of the law of the situs as directed by a
foreign choice-of-law rule, and the spouse would not have enjoyed
such benefit under the law applicable pursuant to the Dutch choice-
of-law rule, the other spouse is entitled to compensation upon
termination of the matrimonial regime 1033.
– The Hungarian codification provides that Hungarian law applies
to the status of family relationship and maintenance rights of a
Hungarian child or a child residing in Hungary, if that law is more
favourable to the child than the otherwise applicable law 1034.
– Article 15 of the 1996 Hague Convention for the Protection of
Children provides that a state with jurisdiction under the Convention
shall apply its own law. The article also provides, however, that “in
so far as the protection of the person or the property of the child
requires” the court may “exceptionally” apply or “take into
consideration” the law of another state “with which the situation
has a substantial connection” 1035
. The Hague Convention on
the International Protection of Adults contains an identical rule
(Article 13) applicable to adults who, “by reason of an impairment
1030. Ukrainian codif., Art. 65.

1031. Albanian codif., Art. 29.
1032. Chinese codif., Art. 25 (emphasis added).
1034. Hungarian codif., Art. 46.
1035. Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co-operation in Respect of Parental Responsibility
and Measures for the Protection of Children, Art. 15. This convention is in force in
22 countries. Supra footnote 1020.
or insufficiency of their personal faculties, are not in a position to

protect their interests” 1036.
(d) Protecting consumers or employees from the consequences of

an adverse choice-of-law clause
In contrast to the above rules, which protect tort victims by granting
them the right to choose the applicable law, other rules seek to protect
consumers 1037 and employees 1038 from the adverse consequences of
their own, potentially coerced or uninformed, assent to choice-of-law
clauses.
The best-known examples are Articles 5 and 6 of the Rome Con-
vention, which are reproduced without material changes in the Rome I
regulation 1039. These articles provide that a choice-of-law clause in a
1036. Hague Convention of 13 January 2000 on the International Protection of

Adults, Art. 1. Article 13 provides that, although a state possessing jurisdiction under
the Convention shall apply its own law, it may also, “in so far as the protection of the
person or the property of the adult requires” apply or take into consideration the law of
another State, with which the situation has a “substantial connection”. This Convention
is in force in seven countries (Czech Republic, Estonia, Finland, France, Germany,
Switzerland, and the United Kingdom).
1037. For general discussion, see D. Fernández Arroyo (ed.), Consumer Protection
in International Private Relationships (2010) ; L. E. Gillies, Electronic Commerce
and International Private Law : A Study of Electronic Consumer Contracts (2008) ;
J. Hill, Cross-Border Consumer Contracts (2008) ; C. Lima Marques, O novo direito
privado e a proteção dos vulneráveis (2012) ; C. Lima Marques, Contratos no Código
de Defesa do Consumidor (6th ed., 2011) ; C. Lima Marques, A. Herman Benjamin and
L. Bessa, Manual de Direito do consumidor (3rd ed., 2011) ; Z. Tang, P. Beaumont and
J. Harris, Electronic Consumer Contracts in the Conflict of Laws (2009) ; J. de Lisle
and E. Trujillo, “Consumer Protection in Transnational Contexts”, 58 Am. J. Comp. L.
135 (2010 Supp.) ; P. Deumier, “La protection des consommateurs dans les relations
internationales”, Rev. int’l dr. comp. 273 (2010) ; D. Fernández Arroyo, “Current
Approaches towards Harmonization of Consumer Private International Law in the
Americas”, 58 Int’l & Comp. LQ 411 (2009 ; G. Rühl, “Consumer Protection in Choice
of Law”, 44 Cornell Int’l LJ 569 (2011).
1038. For general discussion, see, e.g., L. Ferret, Employment Contracts in Private
International Law (2012) ; U. Liukkunen, The Role of Mandatory Rules in International
Labour Law (2004) ; U. Grušic, “The Territorial Scope of Employment Legislation
and Choice of Law”, 75 Mod. L. Rev. 722 (2012) ; G. Lester and E. Ryan, “Choice of
Law and Employee Restrictive Covenants : An American Perspective”, 31 Comp. Lab.
L. & Pol’y J. 389 (2010) ; T. Mahnhold, “Choice of Law Provisions in Contractual
Covenants Not to Compete : The German Approach”, 31 Comp. Lab. L. & Pol’y J. 331
(2010) ; E. Menegatti, “The Choice of Law in Employment Contracts : Covenants Not
to Compete under the Italian Legislation”, 31 Comp. Lab. L. & Pol’y J. 799 (2010) ;
C. R. Yamakawa, “Transnational Dimension of Japanese Labor and Employment Laws :
New Choice of Law Rules and Determination of Geographical Reach”, 31 Comp. Lab.
L. & Pol’y J. 347 (2010).
1039. See Rome Convention, Arts. 5-6, and Rome I, Arts. 6 and 8. For general
discussion, see S. Klauer, Das europäische Kollisionsrecht der Verbraucherveträge
zwischen Römer EVÜ und EG-Richtlinien (2002) ; P. A. Brand, “Cross-Border Consumer
consumer contract or employment contract may not deprive a consumer

or employee, respectively, of the protection afforded by the mandatory
rules of the country whose law would govern the contract in the absence
of such a clause (lex causae). This protection includes all mandatory
rules of the lex causae, even those that do not embody a strong public
policy. This may appear too generous to the consumer or employee, but
the other contracting party may easily avoid this generosity simply by
not deviating from the lex causae. In any event, one may argue that it is
better to err on the side of over-protection, rather than under-protection,
of weak parties such as consumers or employees.
Similar provisions are found in the laws of many countries, both
within the European Union 1040 and outside the European Union,
including Albania, Dominican Republic, FYROM, Georgia, South
Korea, Liechtenstein, Montenegro, Puerto Rico, Quebec, Russia, Serbia,
Switzerland, Turkey, Ukraine, and Uruguay 1041. The corresponding
Japanese rules deserve special mention because they directly give
consumers and employees a post-dispute choice of whether to invoke
the protections of the mandatory rules of the lex causae 1042. Again, the
Protection within the EU – Inconsistencies and Contradictions in the European

System of Conflict of Law Rules and Procedural Law”, IPRax 126 (2013) ; P. Cachia,
“Consumer Contracts in European Private International Law : The Sphere of Operation
of the Consumer Contract Rules in the Brussels I and Rome I Regulations”, 34 Eur. L.
Rev. 476 (2009) ; F. Garcimartin Alférez, “The Rome I Regulation : Exceptions to the
Rule on Consumer Contracts and Financial Instruments”, 5 J. Priv. Int’l L. 85 (2009) ;
L. E. Gillies, “Choice-of-Law Rules for Electronic Consumer Contracts : Replacement
of the Rome Convention by the Rome I Regulation”, 3 J. Priv. Int’l L. 89 (2007) ;
J. J. Healy, “Consumer Protection Choice of Law : European Lessons for the United
States”, 19 Duke J. Comp. & Int’l L. 535 (2009) ; J. Hill, “Article 6 of the Rome I
Regulation : Much Ado About Nothing”, 2009 Nederl. IPR. 437 (2009) ; F. Ragno, “The
Law Applicable to Consumer Contracts under the Rome I Regulation”, in F. Ferrari and
S. Leible (eds.), Rome I Regulation 129 (2009) ; Z. Tang, “Private International Law in
Consumer Contracts : A European Perspective”, 6 J. Priv. Int’l L. 225 (2010) ; Z. Tang,
“Parties’ Choice of Law in E-Consumer Contracts”, 3 J. Priv. Int’l L. 113 (2007).
1040. See Austrian codif., Art. 41 ; Bulgarian codif., Arts. 95-96 ; Estonian codif.,
Arts. 34 (1), 35 (1) ; German codif., Arts. 29-30 ; Lithuanian codif., Art. 1.39 ; Slovenian
codif., Arts. 21-22.
1041. See Albanian codif., Art. 52 ; Dominican Rep. codif., Arts. 62-63 ; FYROM
codif., Arts. 25-26 ; Georgia codif., Art. 38 ; South Korean codif., Arts. 27-28 ;
Liechtenstein codif., Arts. 45, 48 ; Montenegrin codif., Arts. 42, 43 ; Puerto Rico codif.,
Arts. 35-36 ; Quebec codif., Arts. 3117-3118 ; Russian codif., Art. 1212 ; Serbian draft
codif., Arts. 141-142 ; Turkish codif., Arts. 26‑27 ; Ukrainian codif., Art. 45.
1042. See Japanese codif., Arts. 11-12. The stated reason for this requirement is to
relieve the court from the burden of having to know and apply these rules ex officio. See
Y. Nishitani, “Party Autonomy and Its Restrictions by Mandatory Rules in Japanese
Private International Law : Contractual Conflicts Rules”, in J. Basedow, H. Baum and
Y. Nishitani (eds.), Japanese and European Private International Law in Comparative
Perspective 77, 95-96 (2008) ; Y. Okuda, “Reform of Japan’s Private International
Law : Act on the General Rules of the Application of Laws”, 8 Ybk. Priv. Int’l L. 145,
materially desirable result of protecting members of a protected class is

given preference over conflicts-justice considerations.
A. Summary
The survey of PIL codifications provided here is wide-ranging,

comprehensive, and detailed to the point of being tedious. It covers all
86 codifications enacted in the last 50 years, in geographically dispersed
and culturally diverse countries, as well as several international
conventions. The survey demonstrates that the vast majority of these
codifications have adopted result-oriented choice-of-law rules, which
structurally fit the traditional mould, but are designed to ensure a
designated substantive result. In fact, of the 86 codifications surveyed,
only four do not contain result-selective choice of law rules 1043.
These rules cover a wide variety of subjects, cutting across all
divisions and subdivisions of private law. Although they employ a
variety of connecting factors and techniques, the common denominator
is that these rules subordinate the goal of “conflicts justice” to the need
to accomplish the designated substantive result of favouring certain
presumptively weak parties, or upholding certain juridical acts.
B. Not “only in America”
The fact that 82 out of 86 countries, on five continents, saw fit to

enact myriad result-selective choice-of-law rules in the last 50 years
answers the rhetorical question of whether material justice views
153 (2006). According to Japanese commentators, the consumer or employee may

invoke this protection “at any time” until the conclusion of the oral argument in the trial
court, as well as in “extrajudicial” proceedings. Y. Okuda, “A Short Look at Rome I on
Contract Conflicts from a Japanese Perspective”, 10 Ybk. Priv. Int’l L. 301, 308 (2008) ;
Y. Okuda, “Reform”, supra, at 153 (quoting a government statement in Parliament).
This post-dispute choice of law by one party makes the Japanese codification both
more practical and more protective of that party (here the consumer or employee) than
Rome I and other codifications. But see Okuda, “A Short Look”, supra, at 308-309
(stating that this rule “overly protect[s]” the consumer or employee and is “unfair to
the other party”).
1043. The four codifications are those of the Central African Republic (1965), Chad
(1967), Cuba (1987), and Madagascar (1962). All four codifications were enacted in
the earlier part of the 50-year period and are very brief. The codification of the Central
African Republic consists of 10 articles. The codification of Chad consists of one article
with six subdivisions. The Cuban codification consists of 14 articles placed in the civil
code. The codification of Madagascar consists of 16 articles.
prosper “only in America”. This development demonstrates that, despite

significant differences among themselves and the American system, PIL
systems around the world are far from indifferent to material justice
considerations.
This is true not only of uncodified PIL systems, but also of those
that are codified and usually considered bastions of conflicts justice.
Authors from those systems now routinely confirm the “integration
of value considerations into private international law” 1044. These
authors acknowledge that “[s]ubstantive values and policies have been
translated into connecting factors focusing on the weaker party, or into
alternative reference rules favoring a specific substantive result” 1045,
and that choice-of-law rules “no longer depend on abstract geographical
factors alone” 1046, nor are they “necessarily . . . detached from the values
of substantive law and blind as far as the achievement of substantive
justice is concerned” 1047.
C. Result selectivism in legislation and adjudication
Friedrich Juenger concluded that the existence of so many result-

oriented rules : (1) “contradicts the proposition that our discipline is
value-free” 1048 ; (2) demonstrates that “teleology can be reduced to
statutory form” 1049 ; and (3) strengthens his argument that “teleology”
or result selectivism should be elevated into a controlling choice-of-
1044. Martinek, “Seven Pillars”, para. 6.1. See also ibid. (“It is no longer and
not alone the determination of the geographically better law that governs private
international law unreservedly and independently from substantive value judgments”).
1045. T. M. de Boer, “Living Apart Together”, at 203.
1046. Ibid. See also B. Audit, “Le droit internationale privé en quête d’universalité”,
305 Recueil des cours 9, 477 (2003) (“A l’époque contemporaine, le souci d’une
réglementation de fond satisfaisante (ou jugée telle) des rapports de droit privé
internationaux conduit à choisir la loi applicable en fonction d’un résultat, luimême
inspiré par la politique législative du for dans le domaine où le rapport s’inscrit. Cette
préoccupation, qui se traduit par une relativisation et un émiettement des règles,
rapproche les méthodes unilatéraliste et bilatéraliste, puisque la seconde vient à mêler
comme la première des considérations substantielles et de localisation”).
1047. Bogdan, “Law of the Forum”, 77. See also T. Pajor, “Polish Report”, in
Symeonides (ed.), Progress or Regress ? 329, 346-347 (“[S]olutions in the area
of conflict of laws should aim to protect individual interests not only by a proper
allocation of legal relationships, but also by making choice of law decisions dependent
upon obtaining the appropriate substantive result (so-called material justice)”) ;
A. E. von Overbeck, “Les questions générales du droit international privé à la lumière
des codifications et projets récents”, 176 Recueil des cours 9, 48 (1982).
1049. Ibid., at 185. See also ibid., at 179 (“In legislation, as in adjudication, teleology
can take various shapes.”).
law criterion, at least in uncodified PIL systems like that of the United
States 1050. Juenger is right on the first two propositions. Our discipline
is not value-free ; it is not, and should not be, indifferent to material
justice considerations. Further, contemporary legislatures are perfectly
capable of taking cognizance of these values.
The problem lies with Juenger’s third proposition ; namely, that the
existence of these result-oriented rules either signifies, or necessitates,
a wholesale reorientation of conflict law towards material justice 1051.
There are qualitative differences between result selectivism in
legislation as exemplified by the rules described in this chapter, and
result selectivism in adjudication as advocated by Leflar, and especially
Juenger and McDougal. The most important difference is not that these
rules are few and far between. As this chapter documents, they are not.
The most important difference is that, in legislative selectivism, the
desirable substantive result is identified in advance and in abstracto
through the consensus mechanisms of democratic legislative processes.
These rules are designed to produce results that the collective will
considers desirable and non-controversial. This is why it has been so
easy to smoothly “naturalize” such rules into traditional PIL systems.
By contrast, in judicial selectivism, the substantive result is chosen ex
post facto and in concreto, often by a single individual who, even with the
best of intentions, cannot easily avoid the dangers of subjectivism 1052.
As the late Peter Nygh pointed out, “[O]ne court’s better law may be
another’s worse.” 1053 Even within a relatively legally-homogeneous
country such as the United States, what is considered just and fair on
one side of the Mississippi River is not necessarily considered just and
fair on the other side. This explains why the Leflar-Juenger model of
selectivism encounters justifiable opposition almost everywhere.
Thus, one can applaud the selective, targeted use of result-selective
rules in choice-of-law legislation, while at the same time rejecting a
1050. See Juenger, Multistate Justice, at 179, 192-195.

1051. See ibid., at 191 et seq. But see C. Roodt, “The Integration of Substantive
Law Interests and Material Justice in South African Choice of Law”, 36 Comp. & Int’l
LJ of So. Afr. 1, 20 (2003) (“A wholesale reorientation of the subject-field towards
substantive justice is uncalled for”). See also ibid., at 19 (“[I]t would be heresy to
declare that result-selection must become the main focus of the choice of law process
in the application stage. This would mean that many other interests would not receive
their due”).
1052. See supra, Chap. VI.3.B.2.b.
1053. P. E. Nygh, Conflict of Laws in Australia 29 (6th ed., 1995) (“[O]ne court’s
better law may be another’s worse. It is only by reference to an ideology that a court
can in some cases make a choice as to which is the better law ; there needs to be a
commitment in some cases to allowing the ‘collective good’ to prevail”)
freewheeling result selectivism in choice-of-law adjudication, as I do.

This position would not come as a surprise to Juenger, who believed that
“those who actually draft conflicts statutes are frequently academicians
beholden to one or the other orthodox doctrine” 1054. As one of those
academicians who, as fate would have it, drafted such statutes 1055, I
must acknowledge and disclose the possibility of my own biases.
D. Exceptional ?
At the other end of the spectrum, scholars within the classical school
believe that result-selective rules such as the ones documented in this
chapter are the exception that simply reaffirms the rule that PIL aims
at conflicts justice rather than material justice 1056. But “[t]he question
is, of course, how far can you go and make exceptions without eroding
and eventually abolishing the rule” 1057. Indeed, this rule is so riddled
with exceptions that its very existence tends to become questionable. It
is true, of course, that result-selective rules are analytically exceptional.
But, as the above survey demonstrates, their numbers are too high, and
their use too widespread globally, to be dismissed as inconsequential.
They are not. One cannot ignore the conspicuous omnipresence of
result-selective rules. Their ubiquity has altered the DNA of PIL. To
put it more mildly, the classical view of conflicts justice has accepted
the corrective function of material justice in many more instances than
50 years ago, and more frequently than generally believed. Conflicts
justice may remain the official PIL goal, except when it is not.
Thus, the classical conception of the choice-of-law process (statutory
or judicial) as a blindfolded, value-neutral exercise is either wrong or
outdated. During the last 50 years, we have moved from an era in which

1055. See S. Symeonides, “The Conflicts Book of the Louisiana Civil Code :
Civilian, American, or Original ?”, 83 Tul. L. Rev. 1041 (2009) ; S. Symeonides,
“Revising Puerto Rico’s Conflicts Law : A Preview”, 28 Colum. J. Trans’l L. 413
(1990) ; S. Symeonides, “Oregon’s New Choice-of-Law Codification for Tort Conflicts :
An Exegesis”, 88 Or. L. Rev. 963 (2009) ; S. Symeonides, “Oregon’s Choice-of-Law
Codification for Contract Conflicts : An Exegesis”, 44 Willamette L. Rev. 205 (2007).
The codifications of Louisiana, Oregon, and Puerto Rico are result-oriented rules only
in cases in which the accumulated collective experience provided clear guidance on
what the proper material result ought to be. See, e.g., S. Symeonides, “Les grands
problèmes de droit international privé et la nouvelle codification de Louisiane”, 81 Rev.
critique dr. int’l privé 223, 253-256 (1992).
1056. See Martinek, “Seven Pillars”, at para. 6 (“[T]hese cases are only exceptions
and never the rule, otherwise the System of Savigny would be catalysed”).
1057. Ibid.
material justice was officially unmentionable to an era in which it has

become an important and, in some instances, co-equal goal to conflicts
justice. Today, the dilemma is no longer (and perhaps it never should
have been) an “either/or” choice between conflicts justice and material
justice 1058. Rather, it is a question of when, how, and how much the
desideratum of material justice should temper the search for conflicts
justice 1059.
1058. See J. Kropholler and J. von Hein, “From Approach to Rule-Orientation in

American Tort Conflicts”, in J. Nafziger and S. Symeonides (eds.), Law and Justice in
a Multistate World : Essays in Honor of Arthur T. von Mehren, 317, 338 (2002) (“It is
wrong to believe that a [result-selective] approach must be swallowed whole or not at
all. [Result-selectivism] should rather be seen as a powerful drug which, if taken in an
overdose, can kill a conflicts system, but which may produce beneficial effects if it is
administered properly”)
1059. Cf. B. Audit, “Rapport Français”, in S. Symeonides (ed.), Progress or
Regress ? 191, 194 (“La simple justice des conflits est susceptible de degrés”) ; Ibid., at
195 (“Il y a donc une ‘justice de répartition’ ”).
CHAPTER VII
THE SOFTENING OF CONCEPTS AND RULES
The success of Savigny’s classical PIL model depends on :

(1) assigning “a definite seat . . . for each class of legal relations” ;
1060
and (2) ensuring that all states adopt the same seat assignments. If
both conditions are met, “the same legal relations” will be decided in
the same way “whether the judgment be pronounced in this state or in
that” 1061, thus attaining Savigny’s goal of international uniformity of
result. This chapter examines the first condition ; namely, the definite-
ness of seat assignments (or, in today’s terminology, connecting factors)
in choice-of-law rules.
A connecting factor is definite when its meaning is unambiguous and
its localization indisputable. For example, the situs of an immovable
is a connecting factor that meets both conditions because immovables
do not move, and their location in a particular state is rarely subject to
dispute. With regard to movables, however, the situs factor becomes
ambiguous once the movable is taken from one state to another (conflit
mobile dans le temps), and becomes the object of transactions or
other dealings in the second state. In that situation, a question arises
of whether to apply the law of the first or the second situs. Similarly,
the connecting factor locus delicti is ambiguous in cross-border torts.
In such cases, the question is whether to apply the law of the state
of injurious conduct or the state of the resulting injury. Sub-rules that
precisely define and localize each connecting factor can answer these
questions a priori. For example, the First Restatement defined the locus
delicti as being in the state of the injury (locus damni) rather than in
the state of conduct, and localized it in “the state where the last event
necessary to make an actor liable of an alleged tort takes place” 1062.
However, even such a constricted definition cannot guarantee
certainty because, in some cases, the injury may be peripatetic.
Examples from the American experience include products liability
1060. Savigny, Treatise, at 89 (emphasis added).

1061. Ibid., at 27.
1062. Restatement (First) of Conflict of Laws, § 377.
cases involving pharmaceuticals 1063 or tobacco products 1064, which the

victims used over long periods of time, while residing in several states.
Other examples include exposure to harmful products such as asbestos
that cause diseases such as mesothelioma that manifest years after the
exposure and while the victims are domiciled in another state 1065. Some
courts have held that the injury occurs at the time and place of the
exposure 1066, while others hold that the injury occurs at the time and
1063. Braune v. Abbott Laboratories, 895 F. Supp. 530 (EDNY 1995), is a typical
example of peripatetic injury caused by a pharmaceutical product. In the 1950s,
doctors prescribed a drug known as DES, which was designed to prevent miscarriages,
to pregnant women living in several states. The plaintiffs in Braune were among
the daughters of those women, and had been exposed to DES during gestation. As a
result of that exposure, plaintiffs gradually developed various abnormalities in their
reproductive organs, including infertility, miscarriages, and cervical cancer, which
became evident when the plaintiffs reached child-bearing age. The plaintiffs, like their
mothers, had lived in several states since the mothers had used the drug, thus raising
difficult questions on when and where the injuries occurred. The court concluded that
the injuries occurred in the states in which they were diagnosed. Ibid., at 559, 564. For
other examples, see Millar-Mintz v. Abbott Labs., 645 NE 2d 278 (Ill. App. Ct. 1994)
(applying Illinois’ pro-plaintiff law to an action filed by a plaintiff whose mother used
DES in the 1940s while domiciled in Illinois. The plaintiff had lived in New York,
California, and then Illinois, where she was first apprised of her infertility and its causal
relation to her mother’s use of DES) ; Wyeth v. Rowatt, 244 P. 3d 765, 776 (Nev. 2010)
(applying Nevada law to an action by Nevada domiciliaries, who were diagnosed with
breast cancer in Nevada, after using the defendant’s oestrogen replacement drugs while
living in other states ; noting that, “until a slow-developing disease is detected, there
is no legally compensable injury to sue upon”, the court concluded that “the place of
injury is the state where the slow-developing disease is first ascertainable, which is the
last event necessary for a claim against a tortfeasor”).
1064. See Tune v. Philip Morris, Inc., 766 So. 2d 350 (Fla. Dist. Ct. App. 2000)
(applying Florida law in an action against a tobacco manufacturer, brought by a
plaintiff who used tobacco products for 42 years while domiciled in New Jersey and
four years while domiciled in Florida and was diagnosed with lung cancer in Florida) ;
Philip Morris, Inc. v. Angeletti, 752 A. 2d 200 (Md. 2000) (decertifying class in a class
action against tobacco manufacturers by former and current Maryland domiciliaries,
who were addicted to tobacco products, because it was unlikely that the “deleterious”
effect of nicotine had taken effect upon the bodies of all plaintiffs in the same state).
1065. See, e.g., McCann v. Foster Wheeler LLC., 225 P. 3d 516 (Cal. 2010)
(applying the pro-defendant law of Oklahoma where the victim was exposed to
asbestos while domiciled there and was diagnosed with mesothelioma many years later
while domiciled in California) ; Pounders v. Enserch E and C, Inc., 306 P. 3d 9 (Ariz.
2013) (applying the pro-defendant law of New Mexico where the victim was exposed
to asbestos while domiciled there and was diagnosed with mesothelioma 20 years later
while domiciled in Arizona ;) ; Rice v. Dow Chemical Co., 875 P. 2d 1213 (Wash. 1994)
(applying the pro-defendant law of Oregon where the victim was exposed to a herbicide
while domiciled there and was diagnosed with resulting disease many years later while
domiciled in Washington).
1066. See, e.g., Ross v. Johns-Manville Corp., 766 F. 2d 823, 827-828 (3rd Cir.,
1985) ; Renfroe v. Eli Lilly and Co., 686 F. 2d 642, 645-647 (8th Cir., 1982) ; Ins. Co.
of N. Am. v. Forty-Eight Insulations, Inc., 633 F. 2d 1212 (6th Cir., 1980) ; In re Joint
Eastern and Southern Dist. Asbestos Lit., 721 F. Supp. 433, 435 (ED and SDNY 1988) ;
Trahan v. E.R. Squibb and Sons, Inc., 567 F. Supp. 505, 507 (MD Tenn. 1983) ; Wilson
v. Johns-Manville Sales Corp., 684 F. 2d 111, 115-117 (DC Cir., 1982) ; Rice v. Dow
place of disease’s manifestation 1067. Similarly, a rule that calls for the

application of the law of the place of conduct cannot guarantee certainty
because in some cases the pertinent conduct may have occurred in more
than one state. For example, in a products liability case, the product
in question may have been designed in one state, tested in another,
approved in another, and manufactured and assembled in yet another
state 1068.
In his general course more than four decades ago, Otto Kahn-Freund
spoke of a “softening of concepts”, which he defined as “the substitution
of ‘soft’ for ‘hard’, of ‘flexible’ for ‘rigid’ connecting concepts” and “the
adoption of principles which owing to their generality and indistinctness
leave as much as possible to the decision of the individual case” 1069.
Kahn-Freund was referring to the American choice-of-law revolution,
though he contended that the germ of this development was much
older : the doctrine of the hypothetical intention of contracting parties
Chem. Co., 875 P. 2d 1213 (Wash. 1994) ; Millar-Mintz v. Abbott Laboratories, 645 NE
2d 278, 282 (Ill. App. Ct. 1994).
1067. See, e.g., Wyeth v. Rowatt, 244 P. 3d 765 (Nev. 2010) ; Celotex Corp. v.
Meehan, 523 So. 2d 141 (Fla. 1988) ; Clayton v. Eli Lilly and Co., 421 F. Supp. 2d 77,
79-80 (DDC 2006) ; Smith v. Walter C. Best, Inc., 756 F. Supp. 878, 880-881 (WD
Pa.1990) ; Harding v. Proko Indus., Inc., 765 F. Supp. 1053, 1056-1057 (D. Kan.1991) ;
In re New York City Asbestos Litigation, 921 NY S. 2d 466 (NY Sup. Ct. 2011) ;
Braune v. Abbot Labs, 895 F. Supp. 530, 559 (EDNY 1995).
1068. See, e.g., Patten v. General Motors Corp., 699 F. Supp. 1500 (WD Okla.
1987) (involving a car designed in Michigan, manufactured in Ohio, and customized in
Florida ; concluding that, “Because the conduct causing the injury occurred in so many
different states, that factor is less important.” Ibid., at 1505) ; Dorman v. Emerson Elec.
Co., 23 F. 3d 1354 (8th Cir. 1994) (involving a miter saw manufactured in Taiwan
by a Taiwanese corporation, under licence from defendant, a Missouri corporation,
which designed and tested that line of products in Missouri) ; Crouch v. General Elec.
Co., 699 F. Supp. 585 (SD Miss. 1988) (involving helicopter engines designed and
manufactured in Massachusetts and installed in a helicopter in Connecticut ; defendant
had its principal place of business in New York, its headquarters in Connecticut, its
engine manufacturing division in Ohio, and its engine design division in Massachusetts) ;
Price v. Litton Systems, Inc., 784 F. 2d 600 (5th Cir. 1986) (involving a helicopter
designed by one defendant in California and manufactured by another defendant in
Virginia) ; Bonti v. Ford Motor Co., 898 F. Supp. 391 (SD Miss. 1995), aff’d mem.,
85 F. 3d 625 (5th Cir. 1996) (involving a car designed in Michigan and manufactured
in Kentucky) ; Rutherford v. Goodyear Tire and Rubber Co., 943 F. Supp. 789 (WD
Ky. 1996), aff’d, 142 F. 3d 436 (6th Cir. 1998) (involving a car tyre manufactured in
Kansas by Goodyear, an Ohio corporation, purchased by Ford Motor Co., a Michigan
corporation, and installed on a Ford car in Ford’s Kentucky assembly plant). For the
problem of testing products in a state “chosen because of its low liability laws”, see
Fawcett, “Products Liability in Private International Law : A European Perspective”,
238 Recueil des cours 9, 127 (1993).
1069. O. Kahn-Freund, “General Problems of Private International Law”, 143
Recueil des cours 139, 406 (1974).
developed by Dumoulin in sixteenth-century contract cases 1070. In his

words, “[T]he ‘softening’ of connecting concepts began long before
the first American ‘realist’ ever saw the light of day.” 1071 Even if Kahn-
Freund is correct on the latter point, the fact remains that connecting
factors became more rigid in subsequent centuries, especially with the
codifications of the nineteenth and early twentieth centuries and the
First Restatement in the 1930s. Consequently, what happened since the
last quarter of the twentieth century can be accurately described as a
softening, or re-softening, of connecting factors.
This chapter discusses this development, beginning with a brief
discussion of an earlier and more radical development in the United
States, which can be described as a movement from rigid connecting
factors to no connecting factors at all. The chapter continues with the
softening of connecting factors and the introduction of escapes clauses
in recent PIL codifications, and concludes with a general discussion of
the tension between the competing needs of certainty and flexibility.
Section 2. The Virtual Abandonment of Connecting Factors

in the United States
In drafting the First Restatement, Joseph Beale took the need for
definite connecting factors far more seriously than Savigny. The
Restatement was consistent with Savigny’s vision in terms of structure
and general philosophy, though not in specific rules. It was a complete,
organized, and disciplined network of bilateral, fixed, neutral, and
detailed choice-of-law rules aspiring to provide solutions for every
conflicts case, eliminate forum shopping and foster international and
interstate uniformity. Unfortunately, these rules were flawed in most
other respects : they were mechanical and rigid, completely sacrificing
flexibility in favour of certainty and an ill-conceived ideological purity ;
they excessively relied on territoriality, and were indifferent to the
content of the territorially-chosen law. Most of these flaws could have
been cured if the rules had been accompanied by exceptions that allowed
for judicial deviation in appropriate, atypical cases. It is precisely the
1070. See op. cit. supra footnote 1069, at 407 (“It would . . . be a serious mistake to
think that this development has its origin in our century or that it began in America. It
began in Europe, and it began in that branch of the conflict of laws which is especially
in need of flexibility, the law of contract. It was inherent in the principle of autonomie
de la volonté, of the proper law of the contract, and can therefore in a sense be traced
back to Dumoulin, and to the Dutch writers of the seventeenth century, especially to
Huber”).
1071. See ibid., at 408.
lack of such exceptions, the lack of an escape, which compounded the

pressure for a judicial “revolution”.
In the beginning, judicial discontent with the First Restatement was
quiet and oblique. In the late 1950s, judges began deviating from the
Restatement’s rules by inventing their own escapes. These included
the manipulation of the characterization and localization processes,
and an expansive application of the only authorized exception, the
ordre public 1072. Gradually, however, even those escapes proved
inadequate to relieve the pressure, prompting many courts to totally
abandon the lex loci delicti and lex loci contractus rules in favour of
flexible, open-ended “approaches”. What later came to be known as a
revolution sparked during the 1960s, caught fire in the 1970s, spread
throughout the 1980s, and finally declared victory in the 1990s 1073.
The result was the demolition of the traditional system, at least in tort
and contract conflicts. Today, only 10 United States jurisdictions
follow the traditional system in tort conflicts, and only 11 in contract
conflicts 1074.
The revolution did not produce a new rule system, but instead
several alternative “approaches” vying for judicial following. These
approaches differ from each other, but one feature distinguishing them
all from the First Restatement is that they do not directly designate
the applicable law, and thus do not depend on a single, pre-designated
connecting factor. Instead, they provide a list of principles or factors
that the court should consider in choosing the applicable law.
The only methodology that relies on physical contacts, rather
than principles, is the “significant-contacts”, “grouping of contacts”,
or “center of gravity” approach initiated by the New York Court of
Appeals in Auten v. Auten 1075, which represents a transition from the
First Restatement to the modern era. The above-quoted terms are
interchangeable, indicative of this approach’s reliance on multiple
physical contacts and its difference from the First Restatement’s rules,
which relied on a single connecting factor. The state that has the “most
significant contacts” is the “center of gravity” of the dispute, and its
law governs essentially irrespective of its content or underlying policy.
1072. See Hay, Borchers and Symeonides, Conflict of Laws, at 145-175 ; Symeon-

ides, Oxford Commentaries 68-86.
1073. For documentation and discussion of this movement, see Symeonides,
Revolution 37-62, et passim.
1075. 124 NE 2d 99 (NY 1954).
When this approach first appeared in the 1950s 1076, it represented

a hopeful step in the right direction. By abandoning the traditional
system’s reliance on a single connecting factor, and instead using
multiple contacts, this approach opened a door to new and promising
ways of thinking, and began the transition from the traditional system
to modern approaches. However, some states have chosen not to
complete this transition, not even by switching to the Restatement
(Second), which, although itself a transitional document, was the next
logical step. Three jurisdictions continue to follow this approach in tort
conflicts 1077 and five do so in contract conflicts 1078.
The Restatement (Second), which is followed in 24 jurisdictions in
tort conflicts and 23 in contract conflicts 1079, also relies on multiple
contacts, rather than a single connecting factor 1080. However, it relegates
1076. The first case to employ this approach was W. H. Barber Co. v. Hughes, 63
NE 2d 417, 423 (Ind. 1945). However, Auten v. Auten, 124 NE 2d 99 (NY 1954), is the
case that brought it to prominence.
1077. See Hubbard Mfg. Co., Inc. v. Greeson, 515 NE 2d 1071 (Ind. 1987) ;
Issendorf v. Olson, 194 NW 2d 750 (ND 1972) ; Widow of Fornaris v. American Sur.
Co., 93 PRR 28 (PR 1966).
1078. See Standard Leasing Corp. v. Schmidt Aviation, Inc., 576 SW 2d 181 (Ark.
1979) ; McMillen v. Winona Nat’l and Savings Bank, 648 SW 2d 460 (Ark. 1983) ; W. H.
Barber Co. v. Hughes, 63 NE 2d 417 (Ind. 1945) ; Hermanson v. Hermanson, 887 P. 2d
1241 (Nev. 1994) ; Boudreau v. Baughman, 368 SE 2d 849 (NC 1988) ; Maryland Cas.
Co. v. San Juan Racing Ass’n, 83 PRR 538 (PR 1961) ; Green Giant Co. v. Tribunal
Superior, 104 PR Dec. 489 (PR 1975).
1080. In a few cases, primarily in the areas of property and successions, the
Restatement (Second) provides rules based on a single connecting factor. See
Restatement (Second), §§ 260-265 (succession to movables) ; §§ 245-255 (inter vivos
transactions involving movables). See also the unilateral choice-of-law rules contained
in Sections 285 (divorce), 286 (nullity of marriage), and 289 (adoption). In cases
involving land and other immovables, the applicable law is almost invariably the “law
that would be applied by the courts of the situs”. See Restatement (Second), §§ 223,
225-232 (inter vivos transactions involving land) ; §§ 236, 239-242 (succession to
land). This phrase is often accompanied by the prediction that these courts “usually”
will apply their own law. However, in most cases, the Restatement identifies the state
of the applicable law only tentatively, through presumptive rules that instruct the judge
to apply the law of a certain state, unless it appears that, in the particular case, another
state has a more significant relationship. For example, all ten of the Restatement
sections designating the law applicable to different types of torts conclude with the
escape clause : “[U]nless, with respect to the particular issue, some other state has a
more significant relationship under the principles stated in § 6 to the occurrence and
the parties, in which event the local law of the other state will be applied.” See, e.g.,
Restatement (Second), § 152. This clause appears throughout the entire Restatement.
In some instances, the presumptive rules are even more equivocal, and amount to no
more than mere “pointers”, directing to the presumptively applicable law. The pertinent
sections provide that the state with the most significant relationship will “usually” be a
particular state. For example, in tort conflicts, 11 of the 19 sections devoted to specific
tort issues conclude with the adage that the applicable law will “usually be the local law
of the state where the injury occurred”. See Restatement (Second), § 156.
contacts to a secondary role and gives priority to consideration of the

policies and principles stated in Section 6. For example, Section 145,
the general rule for tort conflicts, provides that the applicable law is the
law of the state that has “the most significant relationship” 1081 to the
occurrence and the parties. The quoted phrase resembles both Savigny’s
“seat” of a legal relationship, and more recent European catchphrases,
such as the state with the “closest” or “strongest” connection 1082.
However, the similarity is rather superficial for three reasons. Under
the Restatement, the state of the most significant relationship is to be
determined : (1) on an issue-by issue basis, (2) “under the principles
stated in § 6”, and (3) by “tak[ing] into account . . . according to their
relative importance with respect to the particular issue” 1083 the contacts
listed in Section 145. These contacts are the places of the conduct, the
injury, the parties’ affiliation with a state (through domicile, residence,
nationality or place of business), and the place of their relationship, if
any 1084. The principles listed in Section 6 are :
(a) the needs of the interstate and international systems ; (b) the
relevant policies of the forum ; (c) the relevant policies of other
interested states and their interests in applying their law to the
particular issue ; (d) the protection of justified party expectations ;
(e) the basic policies underlying the particular field of law ; (f) the
objectives of certainty, predictability, and uniformity of result ; and
(g) the ease in determining and applying the governing law 1085.
One difference between the Restatement (Second) and the centre of
gravity approach is that, although they both tend to consider the same
contacts, the Restatement also requires a policy analysis, by providing
that the pertinent contacts must be evaluated “in light of the policies of
§ 6”, which include the policies of the contact states as well as multistate
policies. In contrast, the significant-contacts approach does not require,
and according to some courts does not even contemplate, examination
of these policies, confining itself to a comparison of contacts alone 1086.

1082. See S. Symeonides, Codifying Choice of Law 176-188.
1084. See Restatement (Second), § 145 (2).
1085. Restatement (Second), § 6 (2).
1086. More troublesome still, it is rarely clear whether a court is looking for the
most contacts or rather the most significant contacts. The comparison is supposed to be
qualitative, rather than quantitative ; but even assuming that this exercise is meaningful,
few courts discharge it convincingly.
Among other modern methodologies, Robert Leflar’s approach,

discussed in Chapter VI, relies on a list of five “choice-influencing
considerations”, none of which include physical contacts 1087. Similarly,
Brainerd Currie’s interest analysis does not depend on any connecting
factors, for the simple reason that it eschews reliance on rules 1088.
That analysis calls for consideration of the interests of the forum state
along with those of other “involved” states, but a state’s involvement
does not depend on a pre-designated connecting factor. Any contact
relevant to the particular issue merely makes a state eligible for such a
consideration, but does not itself guarantee application of the contact
state.

The Softening of Connecting Factors in Recent Codifications
Three decades ago, Paul Lagarde, the pre-eminent continental PIL

jurist, articulated an overarching principle underlying the emergence
of a new, flexible connecting factor in European PIL. He called it
the “proximity principle” 1089, and defined it as “the idea of attaching
a legal relationship to the legal system of the country with which it
has the closest connection” 1090. Lagarde described the proximity
principle as “fundamentally different from Savigny’s doctrine” 1091, and
characterized it as “the Western European response to the American
challenge” 1092.
In typical continental fashion, the response was measured. Unlike
the American approaches, which either dispensed with connecting
factors or relegated them to an entirely secondary role, European
systems introduced “soft” connecting factors, alongside the old factors
and without fundamentally altering the system’s architecture as one
1087. See supra, Chap. VI.3.B.2.a.

1088. See Currie, Selected Essays 180 (“The [traditional] rules . . . have not worked
and cannot be made to work . . . But the root of the trouble goes deeper. In attempting
to use rules we encounter difficulties that stem not from the fact that the particular rules
are bad . . . but rather from the fact that we have such rules at all”). See also ibid., at 183
(“We would be better off without choice-of-law rules”).
1089. See P. Lagarde, “Le principe de proximité dans le droit international privé
contemporain”, 196 Recueil des cours 9, 25 (1986). See also C. Kessedjian, “Le
principe de proximité vingt ans après”, in M.-N. Jobard-Bachellier and P. Mayer (eds.),
Le droit international privé : Esprit et méthodes, Mélanges en l’honneur de Paul
Lagarde 507 (2005).
1090. Lagarde, “Le principe de proximité”, at 25-26.
1091. Ibid., at 29.
1092. Ibid., at 25 (“la réponse européenne occidentale au défi américaine”).
based on a priori rules. This section discusses this development. It

examines the softening of connecting factors in the PIL codifications
enacted over the last 50 years in Europe and elsewhere, beginning with
the most ubiquitous of them, the “closest connection”.
A. The closer or closest connection
The “closer” or “closest connection” is the most popular of the flexible

connecting factors in recent codifications 1093. With slight variations in
phraseology, several national codifications and international conven-
tions, as well as the Rome I and Rome II Regulations, use this factor. The
differences in language include the use of a different adjective (“close”
or “strong”) in either the comparative (“closer” or “stronger”) or the
superlative (“closest” or “strongest”) 1094, and the use of a different noun
(“connection”, “relationship”, “link”, or “tie”).
Despite phraseological differences, some of which result from
variations in translation, these formulations have one thing in common.
Unlike traditional fixed connecting factors that point directly (and often
inexorably) to the state of the applicable law, this connecting factor
contemplates a more individualized determination of that state. It
allows the court to take account of all pertinent contacts and factors,
and, when properly applied, it requires the court to explain why one
state’s contacts are “closer”, “more pertinent”, or “more significant”
than those of another state.
This “closest connection” factor is now ubiquitous – it became a
“multitasker” well before the word became fashionable. As discussed
below, it plays several different roles in various codifications, and
often within different rules of the same codification. It can serve as the
connecting factor for all or some of a codification’s rules, or can be part
of an escape from all or some of those rules.
1093. For the view that the “closer connection” is at least as malleable as the Second
Restatement’s “most significant relationship” formula, see F. K. Juenger, “American
and European Conflicts Law”, 30 Am. J. Comp. L. 117, 128 (1982) (“It is obviously a
delusion to believe that the words “most closely connected” as used by Europeans have
any more meaning than our Second Restatement’s “most significant relationship”. But
those committed to legal certainty as the ultimate value in the law of conflicts are prone
to succumb to this delusion”).
1094. The comparative “closer” is used when the decision-maker is to compare the
connection of another state, usually to the connection with the state of the otherwise
applicable law. The superlative is used when the decision-maker is to find the “closest”
among several connections.
1. The closest connection as the principal connecting factor
Four codifications (those of Austria, Bulgaria, Burkina Faso, and

China) anchor all of their choice-of-law rules on the concept of the
closest connection.
The very first article of the Austrian codification provides that
multistate cases “shall be judged . . . according to the legal order with
which the strongest connection exists”, and that the codification’s
choice-of-law rules “shall be considered as expressions of this
principle” 1095. Likewise, Article 2 of the Bulgarian codification provides
that multistate cases are governed by the law of the state with which
they are “most closely connected”, and that the codification’s choice-
of-law rules “express this principle” 1096. Article 2 also provides that, if
the applicable law cannot be determined through those rules, “the law
of the State with which the relationship has the closest connection by
virtue of other criteria shall apply” 1097.
Article 1003 of the Burkina Faso codification provides that multistate
cases are governed by the law that has the “strongest connection”
and that the codification’s choice-of-law rules are “considered as the
expression of [this] general principle” 1098. The same article further
provides that, in the event of gaps or insufficiencies in those rules, the
judge should be “inspired” by and draw from this principle 1099.
Finally, Article 3 of the Chinese codification provides that the law
applicable to any civil relationship involving foreign elements “shall
have the closest connection” with such relationship, and that if the
codification does not provide for a particular relationship, “the law of
the country that has the closest connection with the civil relationship
involving foreign elements shall be applied” 1100.
In many cases, more specific articles retract the flexibility that
the above general articles provide. Nevertheless, the closest con-
nection remains the general and residual principle of these codifications
and, as explained later, can serve as both an escape from the specific
articles in appropriate cases, and as a gap-filler in unprovided-for
cases.
1095. Austrian codif., Art. 1.

1096. Bulgarian codif., Art. 2.
1097. Bulgarian codif., Art. 2.
2. The closest connection in specific roles
The closest connection operates in various, specific roles, including :

(1) As a presumption and an escape in contract, tort and other conflicts ;
(2) As the connecting factor for the mandatory rules of a “third” state ;
(3) As a tie-breaker in cases of multiple nationalities and certain
personal status cases ;
(4) As a vector in applying the law of a federal or other plurilegal state ;
and
(5) As a gap-filler in unprovided-for cases.
(a) The closest connection as a presumption in contract conflicts,

subject to a closer-connection escape
The closest-connection factor has played a special role in contract

conflicts since at least the 1980 Rome Convention. The Convention
provided that, in the absence of an effective choice-of-law clause,
a contract was governed by the law of the country with which the
contract was “most closely connected” 1101, and then provided a series
of presumptive rules identifying that country for different types of
contracts. These rules generally pointed to the habitual residence of
the obligor of the “characteristic performance”, which itself is another
“soft” connecting factor. The Convention also provided, however, that
these presumptions were to be disregarded if the contract was “more
closely connected with another country” 1102.
The Rome I Regulation has since replaced the Rome Convention ; but
in the meantime, several national codifications, as well as the Mexico
City Convention, have followed the Convention’s scheme, albeit with
variations 1103. Some countries, such as Germany 1104, that were also
members of the European Union adopted statutes implementing or
emulating the Convention. Emulation was the path chosen by certain
countries that later joined the European Union, such as Bulgaria,
1101. Rome Convention, Art. 4 (1).

1102. Rome Convention, Art. 4 (5). See also ibid., Art. 6 (with regard to employment
contracts).
1103. See Inter-American Convention on the Law Applicable to International
Contracts of 1994, Art. 9 (providing that, “If the parties have not selected the applicable
law, or if their selection proves ineffective, the contract shall be governed by the law of
the State with which it has the closest ties”). The convention is not in force.
1104. See German codif., Arts. 28‑30.
Estonia, Hungary, Lithuania, and Slovenia 1105. Some EU member states

have since amended their national codifications to conform to the
Rome I Regulation 1106.
Several countries outside the European Union have adopted schemes
similar to the Convention, or have used the closest-connection factor
in similar fashion. These countries include Albania, Argentina,
Armenia, Belarus, FYROM, Georgia, Japan, South Korea, Moldova,
Quebec, Russia, Serbia, Switzerland, Taiwan, Turkey, Ukraine,
and Venezuela 1107
. The codifications of Azerbaijan, Kazakhstan,
Kyrgyzstan, Tajikistan, and Uzbekistan use the closest connection in
a more limited fashion 1108 ; while the Japanese, Polish, and Quebec
codifications extend the principle of the closest connection to both
bilateral juridical acts other than contracts and unilateral acts 1109. Further,
the latter codifications articulate the presumption of the characteristic
performance in less categorical and more easily rebuttable terms than
did the Rome Convention 1110.
Finally, in the Mexico City Convention (and the codifications of
Venezuela and Macau), the closest connection is the only connecting
factor, which (unaided by presumptive rules) determines the applicable
1105. See Bulgarian codif., Art. 94 ; Estonian codif., Arts. 33, 35, 45 ; Hungarian
codif., Art. 29 (in force until 2009) ; Lithuanian codif., Art. 1.37 ; Slovenian codif.,
Art. 20. These provisions remain applicable to contracts that fall outside the scope of
Rome I.
1106. See, e.g., Czech codif., Arts. 87-100 ; Hungarian codif., Arts. 24-30.
1107. See Albanian codif., Art. 46 ; Argentinian draft codif., Art. 2653 ; Armenian
codif., Art. 1285 ; Belarus codif., Art. 1125 (4) ; FYROM codif., Art. 22 ; Georgian
codif., Art. 36 ; Japanese codif., Arts. 8, 12 ; South Korean codif., Art 26 ; Moldovan
codif., Arts. 1611-1614 ; Quebec codif., Arts. 3112, 3113 ; Russian codif., Art 1211 ;
Serbian draft codif., Arts. 137-147 ; Swiss codif., Arts. 117, 187 ; Taiwanese codif.,
Arts. 20 (contracts), 17-18 (agency), 43 (1) (bills of lading), 44 (securities), 45 (mar-
riage engagement) ; Turkish codif., Arts. 24 (4), 27, 28 (2), 29 (3) ; Ukrainian codif.,
Arts. 32 (2)-(3), 44 (2) ; Venezuelan codif., Art. 30.
1108. These codifications provide that the law of the state with the closest connec-
tion applies if the characteristic performance cannot be determined, or in contracts
that are not provided for in these codifications and when the parties have not
chosen the applicable law. See Azerbaijan codif., Art. 25.3 ; Kazakhstan codif.,
Art. 1113.4 ; Kyrgyzstan codif., Art. 1199.3 ; Tajikistan codif., Art 1219 ; Uzbekistan
codif., Art. 1190.
1109. See Japanese codif., Arts. 8-10 (using the term “juridical acts” rather than
contracts) ; Polish. codif., Art. 32 (applicable to unilateral juridical acts) ; Quebec
codif., Arts. 3082, 3107, 3112-3113.
1110. Likewise, the Belgian codification has adopted the closest connection as the
residual connecting factor for the interpretation or revocation of wills. See Belgian
codif., Art. 84 (providing that, in the absence of a choice-of-law by the testator, the
interpretation or revocation of a testament is governed by the law of the state with
which the will or revocation has “the closest connections”, and that state is presumed to
be the testator’s habitual residence “until proof of the contrary is brought”).
law for contracts that do not contain an effective choice-of-law

clause 1111. The Mexico City Convention provides that, in the absence
of an effective choice‑of‑law agreement, a contract is governed by the
law of the State with which it has the “closest ties”, and that a severable
part of a contract with a “closer tie” to another state is governed by the
law of that state 1112.
The Rome I Regulation replaced the Rome Convention’s presumptive
rules with tighter rules and deleted the Convention’s explicit statement
that these rules are based on the closest-connection factor. Nevertheless,
this factor remains omnipresent, though admittedly in the background.
Not only does it remain the residual connecting factor for contracts
in which the applicable law “cannot be determined” 1113 through the
presumptive rules, but also provides the basis for an exception from all
of those rules (albeit an exception phrased in tighter language than in
the Convention). Article 4 (3) of Rome I provides that, when it is “clear
from all the circumstances of the case that the contract is manifestly more
closely connected” with a country other than the country designated by
those rules, the law of that other country shall apply 1114.
(b) The closest connection as a presumption in tort conflicts

subject to a closer-connection escape
Many recent codifications assign a similar role to the closest

connection in tort conflicts. For example, although the text of the
Rome II Regulation does not expressly state that its rules are based on
the closest connection, Rome II employs several escape clauses based
on this factor. These clauses are found in the general rule of Article 4, as
well as in the articles providing for certain specific torts 1115. The escapes
provide that if it is “clear from all the circumstances of the case” that
the tort is “manifestly more closely connected” with a country other the
1111. See Venezuela codif., Art. 30 ; Macau codif., Art. 41 ; Mexico City Conv.,
Art. 9.
1112. Mexico City Conv., Art. 9.
1113. Rome I, Art. 4 (4).
1114. Rome I, Art. 4 (3). Similar exceptions are found in Arts. 5 (3) (contracts of
carriage), 7 (3) (insurance contracts), and 8 (4) (individual employment contracts).
1115. In contrast to the preliminary draft, which limited the scope of the escape to
cases covered by the general rule, the final text repeats the escape in the articles dealing
with products liability (Art. 5), unfair competition cases in which the competition
affects exclusively the interests of a specific competitor (Art. 6 (2) ), unjust enrichment
(Art. 10), negotiorum gestio (Art. 11), and culpa in contrahendo (Art. 12).
one whose law is applicable under the above articles, the law of that
country governs 1116.
These escape clauses are available in all EU countries except
Denmark. However, because Rome II does not apply to all possible
tort conflicts, the national choice-of-law rules of EU countries remain
relevant 1117. Some of these rules differ slightly from those of Rome II.
For example, under Article 4 of Rome II, the applicable law is either :
(a) the law of the state of injury ; or (b) if the tortfeasor and the victim
have their habitual residences in the same state, the law of that state.
However, both of those laws can be displaced by the law of another state
that has a closer connection. Under the Austrian article, by contrast, the
applicable law is the law of the state of conduct, but that law can be
displaced by another state’s law “if the persons involved have a stronger
connection to the law of one and the same state” 1118. The corresponding
Belgian articles provide that the applicable law is (a) the law of the
parties’ common habitual residence ; (b) in the absence thereof, the law
of the state where both the conduct and the injury occurred ; and (c) in
all other cases, the law of the state with which the obligation has the
closest connection 1119.
Outside the European Union, the codifications of Albania, FYROM,
Japan, Serbia, Taiwan, and Turkey are among those that employ similar
closer-connection escapes in tort conflicts 1120.
(c) The closest connection as a connecting factor in other

conflicts
The closest connection is used as a connecting factor in miscellaneous

other cases. The following are some examples :
1116. Rome II, Arts. 4 (3), 5 (2), 10 (4), 11 (4), 12 (2) (c). The first two provisions
state that a “manifestly closer connection” with another country “might be based in
particular on a pre-existing relationship between the parties, such as a contract, that is
closely connected with the tort/delict in question”.
1117. See, e.g., Austrian codif., Art. 48 (2) ; Belgian codif., Art. 99 ; Bulgarian
codif., Art. 105 ; Estonian codif., Art. 53 ; German codif., Art. 41 ; Lithuanian codif.,
Art. 1.43 ; Slovenian codif., Art. 30 (2).
1118. Austrian codif., Art. 48 (2).
1119. See Belgian codif., Art. 99. However, if the obligation has a “close connection”
with an existing legal relationship between the parties, the law that governs that
relationship displaces these laws. See ibid., Art. 100.
1120. See Albanian codif., Arts. 56.3, 57.3, 63.3, 68.4, 69.4, 70.4 ; FYROM codif.,
Art. 33 (2) ; Japanese codif., Arts. 15, 20 ; Serbian draft codif., Arts. 161, 162, 165, 168,
170 ; Taiwanese codif., Arts. 25, 28 ; Turkish codif., Art. 34 (3).
– The Belgian codification uses this factor to determine the applicable

law in certain intellectual property disputes, and for determining
rights in certain groups of assets 1121.
– The Czech and Quebec codification use this factor for determining
the law governing a trust in which the settlor did not choose the
applicable law 1122.
– The Czech codification also provides that, in deciding questions of
guardianship of minors, the court may apply the law of a state that
has a “substantial connection”, in lieu of the lex fori, if necessary for
the protection of the minor 1123.
– The Ukrainian codification states that the rights and duties of parents
and children are governed by the child’s national law, or by the law of
the state that has a “close connection with the respective relations”, if
that law is more favourable to the child 1124.
– The Taiwanese codification uses the closest connection as the residual
connecting factor for cases involving an agency relationship, bills of
lading, and certain rights in securities 1125.
– In the EU Successions Regulation, the closest connection is the
unstated connecting factor underlying the general rule of applying
the law of the decedent’s last habitual residence, the stated basis
for an exception from that rule, and the principal connecting for
agreements involving the succession of several persons 1126.
– Finally, in the codification of Burkina Faso, the closer connection
triggers an escape from law of the decedent’s nationality to that of
his or her domicile in matters of succession 1127.
(d) Close connection and mandatory rules
The close-connection factor is also used in other limited contexts.

For example, Article 20 of the Belgian codification allows a court to
apply the mandatory rules of a foreign state other than the one whose
law is applicable under the codification, if the other state has a “close
1121. See Belgian codif., Arts. 87 (2), 93.

1122. See Czech codif., Art. 73 ; Quebec codif., Art. 3107.
1123. See Czech codif., Art. 65.
1124. Ukrainian codif., Art. 66.
1125. See Taiwanese codif., Arts. 17-19, 43, 44.
1126. See Successions Regulation, Art. 21.1 ; recital 23 ; Art. 21.2 ; recital 25 ;
Art. 25.2.
1127. See Burkina Faso codif., Art. 1043.
connection” with the “situation” 1128. Nearly 20 other codifications

use the “close connection” as a vector to the mandatory rules of a
third state 1129, as do four Hague conventions 1130, the Mexico City
Convention 1131, and the Rome Convention 1132.
(e) The closest connection as a tie-breaker

Several codifications use the closest-connection factor as a tiebreaker
in certain categories of cases, such as those concerning persons with
multiple nationalities, domiciles, or habitual residences, or cases
involving the effects of marriage or divorce. For example, Article 1262
of the Armenian codification provides that the “personal law” of an
individual is the law of the state of which she is a citizen and, in the
case of multiple citizenships, the law of the state with which she is
“most closely connected”. More than 20 other codifications provide a
similar rule for persons of multiple nationalities 1133.
Other codifications, such as that of Ukraine, use an intermediate
tiebreaker by referring to the person’s domicile or habitual residence
before resorting to the closest connection factor 1134. The codifications
of Bulgaria, Croatia, FYROM, Japan, North Korea, Serbia, and
Vietnam provide that, in cases of citizenship in multiple countries, the
person’s habitual residence serves as the tiebreaker if the person is a
1128. Belgian codif., Art. 20 (emphasis added).

1129. See the codifications of Argentina, Art. 2599 ; Azerbaijan, Art. 5.2 ; Belarus,
Art. 1100.2 ; Kazakhstan, Art. 1091.2 ; Kyrgyzstan, Art. 1174.2 ; Lithuania, Art. 1.11 ;
Netherlands, Art. 7.3 ; Poland, Art. 8.2 ; Quebec, Art. 3079 ; Serbia draft, Art. 40.2 ;
Russia, Art. 1192.2 ; Switzerland, Art. 19.1 ; Tajikistan, Art. 1198.2 ; Tunisia, Art. 38 ;
Turkey, Art. 31 ; Ukraine, Art. 14 ; Uruguay draft, Art. 6.2 ; Uzbekistan, Art. 1165.
1130. See Hague Convention of 14 March 1978 on the Law Applicable to Agency,
Art. 16 ; Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on Their
Recognition, Art. 17 ; Hague Convention of 1 August 1989 on the Law Applicable to
Succession to the Estates of Deceased Persons, Art. 6 ; Hague Convention of 13 January
2000 on the International Protection of Adults, Art. 20.
1131. See Mexico City Convention, Art. 11.
1132. See Rome Convention, Art. 7.1.
1133. See, e.g., Austrian codif., Art. 9 ; Azerbaijan codif., Art. 9.1 ; Belarus
codif., Art. 1103 ; Belgian codif., Art. 3 (2) ; Chinese codif., Art. 20 ; Estonian codif.,
Art. 11 ; German codif., Art. 5 ; Greek Civ. Code, Art. 31 ; Italian codif., Art. 19 (2) ;
South Korean codif., Art. 3 (1) ; Kazakhstan codif., Art. 1094.1 ; Kyrgyzstan codif.,
Art. 1177 ; Liechtenstein codif., Art. 10 (1) ; Lithuanian codif., Art. 1.11 (same rule
for multiple or indeterminate domiciles) ; Moldova codif., Art. 1589 ; Macau codif.,
Art. 52 ; Polish codif., Art. 2.2 ; Slovenian codif., Art. 10 ; Taiwanese codif., Art. 2 ;
Turkish codif., Art. 4 ; Uzbekistan codif., Art. 1168 ; Vietnamese codif., Art. 760 (3) ;
FYROM codif., Art. 11. Some codifications contain an exception providing that if one
of the nationalities is that of the forum state, the law of that nationality controls.
1134. See Ukrainian codif., Art. 16 ; Albanian codif., Art. 8.3.
citizen of such country and, if not, the law of the state of the closest
connection applies 1135. The Dutch codification has similar rules for the
law governing a person’s capacity and name 1136.
The closest connection plays a similar role in cases involving the
personal or patrimonial effects of marriage and divorce. For example,
Articles 36 and 37 of the North Korean codification provide that, if the
spouses do not possess the same nationality and do not reside in the
same country, the effects of marriage and the availability and effects of
divorce shall be determined under the law of the state with which the
spouses have the “closest relationship” 1137. The Taiwanese codification
contains the same rules for these two subjects, as well for engagements to
marry and for the matrimonial regime 1138. At least 16 other codifications
have a comparable rule for the effects of marriage 1139, as does the 1987
Hague Convention on the Law Applicable to Matrimonial Property
Regimes 1140. Portugal 1141 and Poland 1142 use a similar rule for the law
applicable to adoption, as does Belgium for the filiation of children of
same-sex relations 1143.
1135. See Bulgarian codif., Art. 48 ; Croatian codif., Art. 11 ; FYROM codif.,
Art. 11 (3) ; Japanese codif., Art. 38 (1) ; North Korean codif., Art. 7 ; Serbian codif.,
Art. 7.2 ; Vietnamese codif., Art. 760 (2).
1136. See Dutch codif., Arts. 11.1, 19.2, 146.2.
1137. North Korean codif., Art. 37.
1138. See Taiwanese codif., Art. 45 (2) (effect of engagement to marry), Art. 47
(effects of marriage), Art. 48 (2) (matrimonial regime), Art. 50 (divorce).
1139. See Albanian codif., Art. 23.3 (personal effects of marriage) ; Austrian codif.,
Art. 18 (personal effects of marriage) ; Cape Verde codif., Art. 52 (relations between
spouses) ; East Timor codif., Art. 51 (relations between spouses) ; Estonian codif.,
Art. 57 (legal consequences of marriage) ; Finnish Marriage Act, Arts. 128 (2) and
129 (4) (personal legal effects of marriage and matrimonial regime) ; German codif.,
Art. 14 (general effects of marriage) ; Japanese codif., Art. 25 (effects of marriage) ;
South Korean codif., Art. 37 (general effects of marriage) ; Macau codif., Arts. 50 and
58 ; Dutch codif., Art. 36 (personal effects) ; Polish codif., Art. 51.2 (personal relations) ;
Portuguese codif., Art. 52 (relations between spouses) ; Slovenian codif., Art. 38 (4)
(personal and property effects) ; Swiss codif., Art. 48 (effects of marriage) ; Ukrainian
codif., Art. 60 (legal consequences of marriage). Some of these codifications use the
connecting factor of domicile, rather than nationality.
1140. See Hague Convention on the Law Applicable to Matrimonial Property
Regimes, Art. 4 (3) (1978). The convention is in force in France, Luxembourg, and the
Netherlands.
1141. See Portuguese codif., Art. 60 (2) (providing that if the adoptive parents do
not have the same nationality, the applicable law is that of the state with which the
family life of the adoptive parents has the closest connection). For identical provisions,
see Cape Verde codif., Art. 58.2 ; East Timor codif., Art. 57.2 ; Macau codif., Art. 56.2.
1142. See Polish codif., Art. 57 (if the adoptive parents do not have the same
nationality, domicile, or habitual residence, the applicable law is that of the state with
which both spouses are most closely connected).
1143. See Portuguese codif., Art. 60 (2) ; Polish codif., Art. 57 ; Belgian codif.,
Art. 62 (2).
The closest connection as a pointer in cases involving a

(f)
federal or other plurilegal state
Several codifications use the closest-connection as an orientation

vector when a choice-of-law rule refers to the law of a federal or other
plurilegal country with subnational or internal legal systems. Those
codifications provide that such a reference shall be to the subnational
system chosen by that country’s rules ; if those rules are inconclusive or
non-existent, the reference shall be to the subnational system that has
the “closest connection” to the case at hand.
Article 18 of the Italian codification, for example, provides
that,
“If reference is made to the law of a State having a non-unified

legal system as regards territory or persons, the applicable law
shall be determined according to the criteria of that State’s legal
system”,
but if it is impossible to establish such criteria, “the legal system shall

be applied that appears to be most closely connected to the specific
case” 1144.
Nearly 30 other national codifications 1145, the Rome III and Suc-
cessions regulations 1146, and several Hague Conventions 1147 contain
similar provisions.
1144. Italian codif., Art. 18.

1145. See the codifications of Albania (Art. 4) ; Armenia (Art. 1256) ; Austria
(Art. 5 (3) ) ; Azerbaijan (Art. 6) ; Belgium (Art. 17) ; Bulgaria (Art. 41.4) ; Burkina
Faso (Art. 1007) ; China (Art. 10) ; Croatia (Art. 10) ; Estonia (Art. 3) ; FYROM
(Art. 10) ; Georgia (Art. 7) ; Germany (Art. 4) ; Lithuania (Art. 1.10.6) ; Netherlands
(Art. 15.3) ; Japan (Art. 38.3) ; South Korea (Art. 3.3) ; Macau (Art. 19) ; Moldova
(Art. 1581) ; Poland (Art. 9) ; Quebec (Art. 3077) ; Russia (Art. 1188) ; Serbia
(Art. 35.3) ; Slovenia (Art. 9) ; Taiwan (Art. 5) ; Tunisia (Art. 2.2) ; Turkey (Art. 2 (5) ) ;
Ukraine (Art. 9) ; and Uruguay (draft Art. 2 (2) ).
1146. See Rome III, Arts. 14 (inter-territorial conflicts) and 15 (inter-personal
conflicts) ; Successions Regulation, Art. 36 (2) (b), (3) (inter-territorial conflicts) and
Art. 37 (inter-personal conflicts).
1147. See, e.g., Hague Convention on the Conflicts of Laws Relating to the Form of
Testamentary Dispositions of 5 October 1961, Art. 1 ; Hague Convention of 1 August
1989 on the Law Applicable to Succession to the Estates of Deceased Persons,
Arts. 19 (3) (b), 20 ; Hague Convention of 19 October 1996 on Jurisdiction, Applicable
Law, Recognition, Enforcement and Co‑operation in Respect of Parental Responsibility
and Measures for the Protection of Children, Arts. 47 (4), 49 (b) ; Hague Convention
of 13 January 2000 on the International Protection of Adults, Art. 45 (d), (f) and
Art. 47 (b) ; Hague Protocol of 23 November 2007 on the Law Applicable to Main-
tenance Obligations, Art. 16 (d), (e).
(g) The closest connection as a gap-filler for unprovided-for

cases
Finally, in some codifications, the closest-connection factor plays

the role of a gap-filler for cases in which the codification does not
provide a choice-of-law rule, or when a particular rule does not provide
a clear choice-of-law solution. For instance, the Polish codification
provides that if the codification and other Polish statutes or treaties do
not designate the applicable law, or if it is impossible to establish the
circumstances upon which the application of foreign law depends, the
applicable law is the law of the state with the closest connection 1148.
Under the Russian codification, if it is impossible to determine the
applicable law through the rules of the codification or elsewhere in or
other Russian statutes or treaties, the law of the country with which
the case is “most closely connected” shall apply 1149. Similar rules
exist in other codifications, including those of Armenia, Austria,
Belarus, Bulgaria, Burkina Faso, China, the Czech Republic, FYROM,
Kazakhstan, Kyrgyzstan, Liechtenstein, Moldova, Poland, Tajikistan,
Ukraine, and Uzbekistan 1150.
In a more specific context, the closest-connection factor serves as
a residual gap-filler for contracts lacking an effective choice-of-law
clause, if the applicable law cannot be determined through other criteria,
such as the “characteristic performance”. This was the case with the
Rome Convention, and remains so with the Rome I Regulation 1151 and
other codifications influenced by them, as noted earlier.
It is worth noting that a few other codifications employ an even more
malleable concept than the closest connection for choosing the law
applicable to unprovided-for cases. The Taiwanese codification – which
otherwise relies extensively on the closest-connection factor – states
that in unprovided-for cases, the applicable law shall be chosen under
the principles derived from “the nature of law” 1152. The codifications
of Jordan, Slovenia, Qatar, UAE, and Yemen are only slightly more
1148. Polish codif., Arts. 67 and 10.

1150. See Armenian codif., Art. 1253 (2) ; Austrian codif., Art. 1 (2) ; Belarus codif.,
Art. 1093 (3) ; Bulgarian codif., Art. 2 (2) ; Burkina Faso codif., Art. 1003 (3) ; Chinese
codif., Art. 3 (2) ; Czech codif., Art. 25 ; FYROM codif., Art. 4 ; Kazakhstan codif.,
Art. 1084.2 ; Kyrgyzstan codif., Art. 1167 (3) ; Liechtenstein codif., Art. 1 (2) ; Moldova
codif., Art. 1578 ; Polish codif., Art. 10 ; Tajikistan codif., Art. 1191.2 ; Ukrainian codif.,
Art. 4 (2) ; Uzbekistan codif., Art. 1158.
1151. See Rome Convention Art. 4 (5) ; Rome I, Art. 4 (4).
specific, providing that “principles of private international law” apply

to conflicts in which these codifications do not designate the governing
law 1153. The FYROM codification authorizes resort to the same
principles, along with the principles of the codification itself and the
forum’s legal system as a whole 1154. Finally, the Mongolian codification
authorizes, without hesitation, resort to unspecified “foreign laws”
when Mongolian law is silent or unclear 1155.
B. Other soft connecting factors
The extensive use of the closest connection in so many codifications

injects a considerable amount of flexibility in the judicial choice-of-
law process. To be sure, this flexibility is primarily “geographical” – as
opposed to a content-dependent or policy-based flexibility – and very
much in line with the Savignian objective of seeking the seat of the
relationship. Even so, it is a step forward from the traditional choice-of-
law rules, which assigned a seat to each relationship a priori.
Codifications less bound to the Savignian tradition are freer to
employ soft connecting factors that are less geographical and more
policy-oriented. This is the case with the two American codifications,
those of Louisiana and Oregon. The principal “connecting factor” of the
Louisiana codification is anything but geographical. Rather, it describes
the objective of the choice of law process : to identify and apply the law
of “the state whose policies would be most seriously impaired if its law
were not applied” to the particular issue 1156. Similarly, the objective of
the choice-of-law process under the Oregon codification is to identify
and apply the law of “the state whose contacts with the parties and the
dispute and whose policies on the disputed issues make application of
the state’s law the most appropriate for those issues” 1157. Again, this is
a qualitative, rather than geographical, objective.
1153. Jordanian codif., Art. 25 ; Slovenian codif., Art. 3 ; Qatar codif., Art. 34 ; UAE
codif., Art. 23 ; Yemen codif., Art. 34.
1154. See FYROM codif., Art. 4.
1155. See Mongolian codif., Art. 540.3 (“Foreign laws and acts can be considered
for establishing the legal framework in case Mongolian law does not specify clearly the
civil relation’s aspect . . . or it is impossible to decide the case through interpretation
of Mongolian law”).
1156. See La. codif., Arts. 3515, 3519, 3537, 3542 (emphasis added).
1157. Or. Rev. Stat., § 15.445 (for tort conflicts) (emphasis added). Or. Rev. Stat.,
§ 15.360, the corresponding residual provision for contract conflicts, calls for the
application of the law which “in light of the multistate elements of the contract . . . is
the most appropriate” for the resolution of the disputed issue.
In the codification of Puerto Rico, a mixed legal system associated

with the United States, the objective of the choice-of-law process is
to identify and apply the law of the state with the “most significant
connection” (“la conexión más significativa” 1158) to the parties and
the dispute. Reflecting Puerto Rico’s cultural equidistance from the
American and continental legal traditions, the quoted phrase bears
an acoustic resemblance to both the “most significant relationship”
language of the Restatement (Second) 1159, and the “closest” or “stronger”
connection of codifications discussed above. Even so, the Puerto Rican
term carries fewer geographical connotations, and is intended to invite
a more qualitative analysis than the terms “stronger” or “closer” used
in those codifications 1160.
Finding the “most appropriate law” is also a stated objective of other
codifications, albeit in more limited contexts. For example, the Greek
Civil Code of 1940 provides that, in the absence of a choice of law by
the parties, “a contract is governed by the law which according to all
the circumstances is the most appropriate” 1161. Although Rome I pre-
empts this provision, it remains applicable for contracts falling outside
the scope of Rome I.
Finally, as noted earlier, the codifications of Jordan, Slovenia, Qatar,
UAE, and Yemen use soft connecting factors other than the closest
connection for unprovided-for cases 1162
. The Slovak codification
provides that, in the absence of an effective choice-of-law clause,
contracts are governed by “the law whose application corresponds to
the reasonable regulation of the relation concerned” 1163.
Section 4. Escape Clauses
As Aristotle recognized so many centuries ago, any pre-formulated

rule (no matter how carefully or wisely drafted) may, “because of its
generality” 1164, or because of its specificity, produce results contrary
1158. Puerto Rico draft codif., Arts. 2, 8, 13, 21, 33, 36, 45.
1159. See, e.g., Restatement (Second), §§ 145, 188, 222, 283, 291.
1160. The reasons for choosing this particular phrase and its intended meaning are
explained by the drafter in S. Symeonides, “Revising Puerto Rico’s Conflicts Law”,
428-429.
1161. Greek Civ. Code, Art. 25.
1162. Supra footnote 1153.
1163. Slovak codif., Art. 10 (1).
1164. See Aristotle, The Nicomachean Ethics, V. x 4-7 : “[T]he law always speaks in
general terms, yet in many cases it is impossible to speak in terms that are both general
and correct at the same time. In those cases, then, in which it is necessary to speak
to the purpose for which the rule was designed 1165. In the words of
Peter Hay, this “is a natural consequence of the difference between law
making and law application” 1166.
With some notable exceptions, most modern legislatures seem fully
aware of the inherent limitations to their ability to anticipate everything.
In recent years, those who have codified choice of law recognized these
limitations and took the previously unprecedented step of expressly
granting judges the authority to adjust (or avoid altogether) the
application of a rule when the circumstances of the individual case so
dictate. In addition to traditional escapes, such as ordre public or fraude
à la loi, this authority takes the form of escape clauses attached to the
rules 1167. This section discusses these escapes.
It is an open question whether escape clauses are a bolder step
toward flexibility than rules containing flexible connecting factors such
as those discussed above. Of course, much depends on the language,
number, and especially breadth of the escape clause. For example,
an escape clauses phrased in terms that make it employable only in
statistically rare cases is clearly a smaller step toward flexibility than
in general terms but not possible to do so correctly, the law provides for the majority
of cases, with full awareness of the deficiency of its provisions. Thus, when the law
pronounces a general rule and thereafter a case arises that is not covered by the general
rule, then it is proper, where the legislator’s pronouncement is defective because of
its over-simplicity, to rectify the defect by deciding in the same way as the legislator
would have decided . . . had he been cognizant of the case. . . . This is in essence the
nature of the equitable (epieikes) : a corrective of the law when law is defective due to
its generality. In fact, this is why it is impossible to legislate about certain matters and
why it becomes necessary to address them through [ad hoc] Resolutions. Undefinable
matters cannot be regulated by definite rules.” (Author’s translation.)
1165. S. Vrellis, “Introductory Observations”, para. 97 (“[T]he generality of a rule
renders it less capable of meeting the demands of justice”).
1166. P. Hay, “Flexibility versus Predictability and Uniformity in Choice of Law”,
226 Recueil des cours 281, 291 (1991).
1167. Escape clauses in PIL were the subject of the XIVth International Congress
of Comparative Law held in Athens in 1994. The general and national reports on this
subject were published in D. Kokkini-Iatridou, Les clauses d’exception en matière de
conflits de lois et de conflits de juridictions – ou le principe de proximité (1994). See
also Cézar E. Dubler, Les clauses d’ exception en droit international privé (1983) ;
C. Adesina Okoli and G. Omoshemime Arishe, “The Operation of the Escape Clauses
in the Rome Convention, Rome I Regulation and Rome II Regulation”, 8 J. Priv. Int’l
L. 514 (2012) ; P. Hay and R. Ellis, “Bridging the Gap between Rules and Approaches
in Tort Choice of Law in the United States : A Survey of Current Case Law”, 27 Int’l
Law. 369 (1993) ; F. Mosconi, “Exceptions to the Operation of Choice of Law Rules”,
217 Recueil des cours 9, 189-195 (1989) ; K. Nadelmann, “Choice of Law Resolved
by Rules or Presumptions with an Escape Clause”, 33 Am. J. Comp. L. 297 (1985) ;
S. Symeonides, “Exception Clauses in American Conflicts Law”, 42 Am. J. Comp. L.
813 (Supp. 1994) ; A. E. von Overbeck, “Les questions générales du droit international
privé à la lumière des codifications et projets récents”, 176 Recueil des cours 9, 186-
207 (1982).
an escape phrased in less categorical language. One can speculate,

however, that although judges would welcome both rules containing
flexible connecting factors and escapes attached to fixed rules, they
would probably select the former, if forced to choose.
Escape clauses can be divided into two categories :
(1) General escapes, or those that apply to all (or most) choice-of-law
rules in a comprehensive choice-of-law codification ; and
(2) Specific escapes, namely those that are attached to a particular
choice-of-law rule, or small group of rules, so as to provide an
exception to that rule or rules.
The line between general and specific escapes is blurred in the case
of partial choice-of-law codifications (such as one limited to contracts
or torts), which contain escapes applicable to all or most choice-of-law
rules of that codification. Rome I, Rome II, and the Oregon statutes for
contract and tort conflicts are examples of this situation. For the purposes
of this chapter, all escape clauses contained in partial codifications are
considered specific, rather than general, escapes.
A. General escapes
Article 15 of the Swiss codification is the prime example of a general

escape. It provides that the law designated as applicable by any of the
codification’s rules is “by way of exception” not to be applied if, “from
the totality of the circumstances, it is manifest that the particular case
has only a very slight connection to that law and has a much closer
relationship to another law” 1168.
Article 19 of the Belgian codification contains a two-prong escape.
It provides that the law designated as applicable by the codification
should not be applied if “it manifestly appears from the totality of the
circumstances” that the matter has “only a very slight connection” with
the state of the designated law, but is “very closely connected” to another
state. In such case, the law of the latter state governs 1169. In applying
this escape, the court should give due consideration to “the need of
predictability of the applicable law” as well as “the circumstance that
the relevant legal relationship was validly established in accordance
1168. Swiss codif., Art. 15. The second paragraph of the article provides that the
escape is not applicable in cases of choice of law by the parties.
with the private international law of the States with which the legal
relationship was connected when it was created” 1170.
Similarly, Article 8 of the Dutch codification states that the law
designated as applicable by a Dutch statutory choice-of-law rule that
is “based on the presumption of a close connection with that law” shall
exceptionally not be applied “if, given all circumstances, the presumed
close connection is hardly existent and a much closer connection exists
to another law” 1171.
Comparable general escapes, with slight variations in phraseology,
exist elsewhere, including the codifications of Argentina, FYROM,
South Korea, Lithuania, Quebec, Serbia, Slovenia, and Ukraine 1172.
Although the above escapes differ in their wording, they nevertheless
possess several common substantive features, which are noted below.
– All of these escapes, except that of Lithuania, can displace not only a
foreign law, but also the law of the forum.
– None of the escapes apply when the parties made a valid choice of
the applicable law 1173.
– All of these escape clauses require a comparative evaluation –
specifically, a comparison between the connections of the case to the
state whose law is applicable under the codification (e.g., State A)
and the connections to another state (e.g., State B). If the connections
to State A are “too slight” or attenuated, and the connections to
State B are “manifestly . . . much closer”, the law of State B dis-
places that of State A. As the quoted words indicate, the threshold
for these escapes is intended to be quite high. The escapes are to be
employed only in exceptional cases, when the connections of a case
to the two states are “manifestly” and highly unequal.
– The required comparison of “connections” suggests that these escape
clauses are intended to provide an exception from only those choice-
of-law rules that are based on the principle of the closest connection
(known as the “principle of proximity”), and not rules that are based
on other factors, such as the substantive content of the applicable
1170. Belgian codif., Art. 19 (2). The article also provides that the escape does
not apply when there is a valid contractual choice of law, or when the codification’s
designation of the applicable law is “based on its content”. Belgian codif., Art. 19 (3).
1171. Dutch codif., Art. 8. This provision does not apply when the parties have
made a valid choice of the applicable law.
1172. See Argentine draft codif., Art. 2597 ; FYROM codif., Art. 3 ; South Korean
codif., Art. 8 (1) ; Lithuanian codif., Art. 1.11 (3) ; Quebec codif., Art. 3082 ; Serbian
draft codif., Art. 36 ; Slovenian codif., Art. 2 (1) ; Ukrainian codif., Art. 4 (3).
1173. Each of the escapes contains language to this effect.
law. Some commentators have taken exactly this position 1174

.
However, the wording of most escapes is much broader, speaking of
“the law designated as applicable” by the codification’s other rules,
without any particular limitation. Only three escapes use language
that expresses the intention suggested above :
– The Dutch escape provides that the law designated as applicable
by a choice-of-law rule “based on the presumption of a close
connection with that law” shall exceptionally not be applied if
“the presumed close connection” is not in fact close, and there
exists a much closer connection with another law 1175 ;
– The Belgian escape is inoperable against rules that designate
the applicable law “based on its content” 1176 ; and
– The Serbian escape is also inoperable when the codification’s
choice of law “is meant to produce a substantive legal result” 1177.
– The reference to “connections”, and its geographic connotations,
suggests that the escapes are intended to operate only within the
confines of “conflicts justice” and should not be employed solely
because of dissatisfaction with the quality of the substantive result
the applicable law produces (“material justice”).
Article 1 of the Austrian codification potentially provides a subtler
escape. The first paragraph of the article states the operating principle
of the entire codification ; namely, that “[f]actual situations with foreign
contacts shall be judged . . . according to the legal order to which the
strongest connection exists” 1178. The second paragraph provides that the
codification’s choice-of-law rules “shall be considered as expressions
of this principle” 1179. The second paragraph can be interpreted in two
different ways. First, that this provision is no more than a gap-filler to
be employed only in cases for which the codification does not designate
the applicable law. The second, and more logical, interpretation is that
the provision is a genuine (albeit oblique), general escape from all of the
codification’s rules. Such an escape would authorize a court to deviate
1174. For the view that the Swiss escape should be so limited, see A. Bucher, “La
clause d’exception dans le contexte de la partie générale de la LDIP”, in A. Bonomi and
E. Cashin Ritaine (eds.), Vingt ans LDIP 59, 61-62 (2009). For a contrary opinion, see
A. E. von Overbeck, “The Fate of Two Remarkable Provisions of the Swiss Statute on
Private International Law”, 1 Ybk. Priv. Int’l L. 119, 130 (1999).
1175. Dutch codif., Art. 8 (emphasis added).
1176. Belgian codif., Art. 19 (3).
1177. Serbian codif., Art. 36.3.
from a particular rule if the court determined that, in the circumstances

of a particular case, the rule would lead to a result inconsistent with the
general principle of the strongest connection.
Article 2 of the Bulgarian codification is similar but arguably more
capable of functioning as a general escape. Paragraph 1 provides
that multistate relationships are governed by the law of the state
with the closest connection to the legal relation at stake, and that
the codification’s choice-of-law rules “express this principle” 1180.
Paragraph 2 then states that, if the governing law cannot be determined
through those rules, “the law of the State with which the relationship
has the closest connection by virtue of other criteria shall apply” 1181.
The fact that paragraph 2 expressly addresses the gap-filling function of
the closest-connection principle would render the reference to the same
principle in paragraph 1 superfluous, unless that reference was intended
to serve as an authorization for an escape when the state designated
by a choice-of-law rule does not to have the closest connection in the
particular case.
Article 1003 of the Burkina Faso codification 1182 and Article 3
of the Chinese codification have the same capacity to function as
general escapes. The Chinese article provides that the law governing
a multistate civil relationship “shall have the closest connection” with
such relationship, and if the codification does not provide for a particular
relationship, “the law of the country that has the closest connection
with [that] relationship . . . shall be applied” 1183.
B. Specific escapes
Specific escapes, or escapes that qualify fewer than all of the choice-
of-law rules of a codification, are much more numerous than general
escapes. This is not surprising ; after all, the need for legal certainty
varies from one area of the law to another. For this reason, the adoption
of escape clauses encounters less resistance in some areas of the law
(such as torts) than in other areas (such as property), thus making the
1180. Bulgarian codif., Art. 2.1.

1181. Bulgarian codif., Art. 2.2.
1182. Article 1003 of the Burkina Faso codification provides that multistate legal
relationships are governed by the law that has the “strongest connection”, and that the
codification’s choice‑of‑law rules are “considered as the expression of [this] general
principle”. The same article also provides that, in case of gap or insufficiency in those
rules, the judge should be “inspired” by, and draw from, that principle.
adoption of specific escapes more palatable to legislators, who are less

trusting of judges.
1. Escapes based on the “closer connection”

The majority of specific escape clauses are based on the principle of
the “closer connection” (“proximity principle”). This is unsurprising
because most of the escapes accompany choice-of-law rules which
themselves are based on the principle of closest connection. A typical
specific escape provides that, if the state whose law is designated as
applicable by a particular choice-of-law rule (based on the closest
connection) turns out to have an attenuated connection, and another
state has a manifestly much closer connection, the law of the latter state
shall govern.
Escape clauses based on this principle can be found in the Rome
Convention and now the Rome I Regulation for contracts, as well as
the Rome II Regulation for torts. Article 4 (5) of the Rome Convention
provided that the presumptive rules of that article “shall be disregarded
if it appears from the circumstances as a whole that the contract is more
closely connected” with a country other than the country designated by
those rules 1184. Paragraph 3 of Article 4 of Rome I contains the same
escape, but in slightly less flexible language. Paragraph 3 states that
if it is “clear from all the circumstances of the case” that a contract
without an effective choice-of-law clause is “manifestly more closely
connected” with a country other than the one indicated by the preceding
paragraphs of the article, the law of that other country shall apply 1185.
Rome II contains similar escapes in its general rule of Article 4, as
well as in the articles dealing with products liability (Art. 5), unfair
competition cases in which the competition exclusively affects the
interests of a specific competitor (Art. 6 (2) ), unjust enrichment (Art. 10),
negotiorum gestio (Art. 11), and culpa in contrahendo (Art. 12). The
escapes provide that, if it is “clear from all the circumstances of the
case” that a tort is “manifestly more closely connected” with a country
1184. Also, paragraph 2 (b) of Article 6 provided that, in the absence of an effective
choice of law by the parties, employment contracts in which the employee does not
habitually carry out his work in any one country are to be governed by the law of
the country in which the place of business through which he was engaged is situated,
“unless it appears from the circumstances as a whole that the contract is more closely
connected with another country, in which case the contract shall be governed by the
law of that country”.
1185. A similar escape is found in Articles 5 (3) (contracts of carriage), 7 (2)
(insurance contracts), and 8 (4) (individual employment contracts).
other than the one whose law is applicable under the above articles, the
law of that country governs 1186.
The above escapes are now available in the 27 EU countries in which
Rome I and Rome II are in force, regardless of whether those countries
have similar escapes in their national codifications 1187.
Outside the European Union, escapes similar to those of the Rome
Convention or Rome I can be found in the Hague Sales Convention 1188
and the codifications of Albania, Argentina, Serbia, Taiwan, and
Turkey 1189. For torts, escapes similar to those of Rome II exist in
the codifications of Albania, FYROM, Japan, Serbia, Taiwan, and
Turkey 1190.
In the area of successions, specific escapes based on the closer
connection are found in the EU Successions Regulation, the Hague
Convention on the Law Applicable to Estates, the Finnish Inheritance
Code, and the Burkina Faso codification 1191.
In other areas, escapes based on the closer connection exist in
the German codification provisions dealing with property, and the pro-
visions of the Polish codification dealing with goods in transit 1192. The
Hague conventions dealing with maintenance, and the protection of
1186. Rome II, Arts. 4 (3), 5 (2), 10 (4), 11 (4), and 12 (2) (c). The first two
provisions state that a “manifestly closer connection” with another country “might”
be based on a pre-existing relationship between the parties, such as a contract, that is
“closely connected with the tort/delict in question”.
1187. See, e.g., Austrian codif., Arts. 35 (3) (for contracts), 48 (2) (for torts) ;
Bulgarian codif., Arts. 94 (8) (for contracts), 105 (3) (for torts) ; Czech codif., Arts. 84,
87 (for contracts), 84, 101 (for torts) ; Estonia, Art. 34 (6) (for contracts), 36 (3) (for
employment contracts), 53 (1) (for torts) ; German codif., Arts. 28 (5) (for contracts),
30 (2), 41 (for torts) ; Hungarian codif., Arts. 24-35 ; Lithuania codif., Art. 1.37 (4) (for
contracts) ; Romanian codif., Art. 78 (2) (for contracts).
1188. See Art. 8 (3) of the Hague Convention for the Law Applicable to the
International Sales of Goods (1986) (providing that “where, in the light of the
circumstances as a whole . . ., the contract is manifestly more closely connected with a
law which is not the law which would otherwise be applicable to the contract . . ., the
contract is governed by that other law”). This convention is not yet in force.
1189. See Albanian codif., Arts. 45.4, 46.3 for all contracts, and 50.4 for carriage
contracts. See also Argentinean draft codif., Art. 2653 ; Serbian draft codif., Arts. 137.4,
149.3 ; Taiwanese codif., Art. 20 ; Turkish codif., Art. 24 (4) (for contracts), Art. 27
(4) (for employment contracts), Art. 28 (for contracts relating to intellectual property).
1190. See Albanian codif., Arts. 56.4 (torts in general), 57.3 (party autonomy),
63.3 products liability), 68.4 (unjust enrichment), 69.4 (industrial action), 70.3 (pre-
contractual liability) ; FYROM codif., Art. 33 (2) ; Japanese codif., Art. 15 (negotiorum
gestio and unjust enrichment), Art. 20 (torts) ; Serbian codif., Art. 161 (torts in general),
Art. 163 (unfair competition), Art. 167 (industrial action) ; Taiwan codif., Arts. 25, 28 ;
Turkish codif., Art. 34.
1191. See Succession Regulation, Art. 21 ; Hague Convention on the Law Applicable
to the Estates of Deceased Persons, Art. 3 ; Finnish Code Inheritance, § 5 (3) ; Burkina
Faso codif., Art. 1043.
1192. See German codif., Art. 46 ; Polish codif., Art. 43.
children and adults also employ comparable (indeed, more malleable)

escapes, which authorize courts to deviate from the otherwise appli-
cable law and apply the law of another state with a “substantial con-
nection” to the case 1193.
2. Escapes based on other factors

Among the escapes that are based on factors other than the closer
connection, Article 1213 of the Russian codification stands out because
it is phrased as an exception to the closest connection factor. Article
1213 states that contracts that do not contain an effective choice-of-
law clause are governed by the law of the country with which the
contract is “most closely connected”. The article then provides several
rules presumptively identifying that country. However, each of these
rules is accompanied by the phrase “unless it otherwise follows from
a statute, the terms or the nature of the contract, or the totality of the
circumstances of the case” 1194. The FYROM codification uses a similar
escape 1195.
Article 10 of the Slovak codification begins by stating, in the absence
of an effective choice-of-law clause, a contract is governed by “the
law whose application corresponds to the reasonable regulation of the
relation concerned” 1196, and then designates that law for various types
of contracts through seven paragraphs. However, these paragraphs are
introduced with the phrase “in general”, thus allowing courts to deviate
from those rules in appropriate cases. In a similar fashion, Article 20 of
the Croatian codification introduces 20 rules designating the applicable
law for various contracts with the phrase “if . . . special circumstances
of the case do not refer to another law” 1197, thus allowing a court to
deviate from these rules if the circumstances of the case so warrant.
1193. See Hague Protocol of 23 November 2007 on the Law Applicable to Main-
tenance Obligations, Art. 5 ; Hague Convention of 19 October 1996 on Jurisdiction,
Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental
Responsibility and Measures for the Protection of Children, Art. 5 (2) ; Hague
Convention of 13 January 2000 on the International Protection of Adults, Art. 13 (2).
1194. Russian codif., Art. 1211 (emphasis added). Articles 1203, 1213, 1217, and
1222 contain similar escapes for cases involving certain foreign juridical persons,
immovable property contracts, unilateral juridical acts, and unfair competition,
respectively.
1195. See FYROM codif., Art. 22 (2) (providing that a contract is presumed as most
closely connected with the home state of the party who is to effect the characteristic
performance “unless special circumstances refer to another law”).
1196. Slovak codif., Art. 10.
1197. Croatian codif., Art. 20.
Article 9 of the Dutch codification provides a general, renvoi-

type escape from its rules, in order to protect certain rights acquired
under foreign law. Based on the “doctrine of the accomplished fact”,
Article 9 provides that when the foreign law that is applicable under
the choice-of-law rules of an involved foreign state attributes certain
consequences to a particular fact, a Dutch court may attribute the same
consequences in deviation from its own choice-of-law rules, if failure
to do so would constitute “an unacceptable violation of the parties’
legitimate expectations or of legal certainty” 1198.
The English statute of 1995, which applied to tort conflicts other
than defamation before the adoption of Rome II, contains a general
rule in Section 11 and a multi-factor escape in Section 12. The escape
provides that the law applicable under the general rule of Section 11
will be displaced,
“If it appears, in all the circumstances, from a comparison of
(a) the significance of the factors which connect a tort or delict
with the country whose law would be the applicable law under the
general rule ; and (b) the significance of any factors connecting
the tort or delict with another country, that it is substantially more
appropriate for the applicable law for determining the issues
arising in the case, or any of those issues, to be the law of the
other country[.]” 1199
Article 3547 of the Louisiana codification provides an escape
from all of the codification’s articles dealing with tort conflicts
(Arts. 3543-3546). Article 3547 provides that the law applicable under
these articles shall not apply if, “from the totality of the circumstances
of an exceptional case”, it is “clearly evident” 1200 under the principles
of Article 3542 (the general article for tort conflicts) that the policies
of another state would be “more seriously impaired if its law were
not applied to the particular issue”. In such a case, the law of the latter
state applies 1201.
The Oregon codification for contract conflicts articulates its
general rule for contracts lacking an effective choice-of-law clause in
Section 15.360, and then provides presumptive rules for particular

1199. UK codif., Art. 12.
1200. The word “clearly” and the tautology it produces (“clearly evident”) was
inserted at the insistence of legislators who wanted to further tighten the escape.
1201. For the history, meaning, and subsequent application of this article, see
Symeonides, “Louisiana Exegesis” 763-766 ; Symeonides, “Two Surprises” 517-522.
types of contracts in Section 15.380. However, the latter section allows

a court to deviate from the law designated by those rules if a party demon-
strates that the application of that law would be “clearly inappropriate
under the principles of [Section] 15.360” 1202.
The Oregon codification for tort conflicts articulates its general
approach in Section 15.445. and provides particular rules for certain
product liability cases in Section 15.435, and for non-product torts in
Section 15.440. Both of the latter sections contain escapes that allow
a court to deviate from the law designated by these sections if a party
demonstrates that the application of the law of another state to a
disputed issue is “substantially more appropriate under the principles
of [Section] 15.445” 1203, in which case the law of the other state would
govern that issue.
Section 15.440 contains an additional escape for torts in which both
the injurious conduct and the injury occurred in a state other than the
home state of either the tortfeasor or the victim, and in which the laws
of those states conflict. In such cases, the applicable law is the law of
the state of conduct and injury. However, if a party demonstrates that
under the circumstances of the particular case, the application of that
law to a disputed issue will “not serve the objectives of that law”, an
escape provides that the issue will be governed by the law selected
under the general approach of Section 15.445 1204.
The Puerto Rico draft code contains several escapes, including
one for tort conflicts that is modelled after the Louisiana escape. The
escape provides that when the code’s rules for tort conflicts would
produce a result “clearly contrary to the objectives” 1205 of Article 39
(which articulates the code’s general approach for tort conflicts), the
applicable law should be selected under the approach of Article 39.
For contract conflicts, the draft code provides a general approach in
Article 30, followed by presumptive rules for certain types of con-
tracts in Article 31. Article 31 also provides, however, that a party may
prevent the application of the law designated by these presumptive
rules by demonstrating that, with regard to the issue in question, another
state has a “manifestly more significant connection to the parties and
1202. Or. Rev. Stat., § 15.380. For discussion, see Symeonides, Oregon Contracts
Exegesis 235-245.
1203. Or. Rev. Stat., §§ 15.435 (3), §15.440 (4). For discussion by the article’s
dafter, see Symeonides, “Oregon Torts Exegesis” 997-1044.
1204. Or. Rev. Stat., § 15.440 (3) (b).
the transaction in accordance with the principles of Article 30” 1206. For

child custody cases, Article 20 calls for the application of forum law,
unless, under the general article for issues of status, another state has
“a more significant connection” to the child and the dispute, and the
application of the law of that state would “serve the best interest of the
child” 1207. For matrimonial regimes, Article 24 provides that if the law
applicable upon termination of the regime would result in unfairly
depriving one spouse of protection accorded by the law previously
governing the regime, the court may make “appropriate exceptions
or adjustments in order to accord that spouse substantially equivalent
protection” 1208. Finally, Article 4 provides a general exception from
the rules calling for the application of the law of a person’s domicile.
The exception provides that, when a person’s connection to the state
of his domicile is “attenuated” and his connections to another state
are “significantly stronger and more pertinent to the particular issue”,
that person may be treated as a domiciliary of the latter state for the
purposes of that issue, “provided such treatment is appropriate” under
the principles of the code’s general article (Art. 2) 1209.
C. Assessment of escapes

It is clear that the introduction of escape clauses is a significant step
in the right direction toward choice-of-law flexibility, and a sign of
progress in the art of codification. It is equally clear, however, that not
all escapes are born equal. Some promise more than they can deliver.
They are phrased in such a tight way as to be employable only in the
most extreme of cases. This is particularly true of the escapes based
on the closest connection. A good example is the general escape of
Rome II, found in paragraph 3 of Article 4, which provides an escape
from both the lex loci rule of paragraph 1 and the common-domicile
1206. Puerto Rico draft codif., Art. 31. For discussion, see Symeonides, “The Puerto
Rico Projet”, 424-434.
1208. Puerto Rico draft codif., Art. 24. With regard to marriage, Article 11 provides
that the starting point is the law of the state of the marriage, or the state of the first
matrimonial domicile. If the marriage was valid in either of those states, the marriage
is considered valid unless it violates a “strong” public policy of the state that, under the
general article for status, has a “substantially more significant connection” to the parties
and the dispute. If the marriage was not valid in either of the two states, the marriage
may nevertheless be considered valid “if it would be so considered in another state”
that, under the general article, has a “more significant connection” to the parties and
the dispute.
1209. Puerto Rico draft codif., Art. 4 (c).
rule of paragraph 2. The escape authorizes a court to apply the law of

another country if “it is clear from all the circumstances of the case that
the tort/delict is manifestly more closely connected with [that other]
country” 1210. Two problematic features of the escape are that : (a) it is
phrased in geographical or quantitative terms that are not correlated to
an overarching principle ; and (b) it does not permit an issue-by-issue
evaluation.
1. Too much geography, too little principle

The reliance on geography is symbolized by the drafters’ choice of
the adjective “closer” to qualify the word “connection”, rather than,
for example, “more significant”, which is the critical adjective in
the English statute 1211 and the Restatement (Second) 1212. The finding
of a “closer connection” must be based on consideration of “all the
circumstances”, but in the absence of any non-quantitative qualifiers,
judges will comprehend the quoted phrase primarily, if not solely, in
geographical terms. In a sense, it is almost inevitable that a system
of geographically-based rules would also rely on geography when
formulating escapes from those rules. Rome II is such a system, as most
of its dispositive rules depend on the place in which a single critical
event occurred, or where one or both parties reside. Very few non-
geographical factors affect the choice, and the content of the conflicting
laws is a factor that appears only in a few narrow exceptions 1213. Having
relied on geography in erecting this system, the drafters of Rome II may
have felt bound to likewise rely on geography to handle the exceptional
cases and overcome the inevitable impasses 1214.
1210. Rome II, Art. 4 (3).

1211. See supra text at footnote 1199.
1212. See, e.g., Restatement (Second), § 146 (authorizing the court to apply the
law of a state other than the state of injury if that other state has “a more significant
relationship . . .”).
1213. See Symeonides, “Rome II”, 181-183.
1214. Jürgen Basedow states that the wording of paragraph 3 of Article 4 of Rome II
does not support the geographical or quantitative orientation of the escape contained
in the first sentence of that paragraph : “Closeness is not confined to local distance :
a ‘close friend’ can live far away.” J. Basedow, “Escape Clauses”, in J. Basedow et
al. (eds.), Encyclopedia of PIL (2017). He correctly notes that the second sentence
of paragraph 3, which states that a manifestly closer connection “might be based . . .
on a pre-existing relationship between the parties, such as a contract, that is closely
connected with the tort/delict in question” contemplates a non-geographical factor.
However, one could argue that this is precisely the reason for which the drafters felt the
need to add that sentence, i.e., as an accessory rule. Its addition does not convert the
first sentence into a non-geographical escape.
The benefits of such logic, however, rarely will overcome its

shortcomings. Escape clauses should be designed to cure a rule’s
deficiencies, not to reproduce them. In order to intelligently employ an
escape, a court must know the reasons for which the drafters made the
choices that the rule embodies, and the goals it seeks to promote. To
simply state that one should look for a “closer” connection gives courts
little meaningful guidance and creates the risk of degenerating into a
mechanical counting of physical contacts. That risk decreases when
the escape correlates to the overarching principles underlying the rules,
and/or when the escape allows an issue-by-issue evaluation.
On this point only, a comparison to the Restatement (Second) can be
instructive. Section 6 of the Restatement articulates the overall goal of the
choice-of-law process as one of identifying the state that has the “most
significant relationship” with the case. Although literally the quoted
phrase appears to contemplate a geographically-based determination,
the content of Section 6 negates any such inference by listing a series
of substantive policies intended to guide the determination. The
subsequent sections of the Restatement provide specific rules, most
of which contain an escape authorizing the judge to apply the law of
another state if, “with respect to the particular issue”, that state has a
more significant relationship “under the principles stated in § 6” 1215.
Similarly, Article 3542 of the Louisiana codification enunciates the
general goal of the choice-of-law process for tort conflicts as one of
identifying the state whose policies would be most seriously impaired
if its law were not applied. After setting forth specific rules based on
that goal, the Louisiana codification provides an escape clause in
Article 3547 that authorizes the judge to apply the law of another
state if, “under the principles of Article 3542”, the policies of that
other state “would be more seriously impaired if its law were not
applied to the particular issue” 1216.
The above italicized phrases from the Restatement and the Louisiana
article signify what is missing from the escape of Article 4 (3) of
Rome II : issue-by-issue evaluation, and correlation to non-geographic
overarching principles. The absence of these two elements will lead
courts to a mere quantitative employment of the escape, which will help
only in the simplest of conflicts. One example would suffice to illustrate
1215. Restatement (Second), § 146 (emphasis added).

1216. La. codif., Art. 3547 (emphasis added). For discussion by the article’s drafter,
see Symeonides, Louisiana Exegesis 763-766.
this problem 1217. Suppose, for example that, while hunting in Kenya, a

French hunter seriously injured a Belgian hunter with whom he had
no pre-existing relationship. Suppose further that Kenyan law limits
the amount of damages to the equivalent of 2,000 euros, while France
and Belgium impose no ceiling, and define the amount of damages in
identical ways. Under Article 4 of Rome II, this case will be governed
by the law of Kenya as the lex loci damni because the parties do not
“have their habitual residence in the same country” (para. 2) (although
their countries have the same law) and they did not have “a pre-existing
relationship” (para. 3). This result makes little sense because :
(1) Kenya would have no interest in applying its low recovery law,
which is based on Kenyan cost of living, in a case involving
foreigners ;
(2) Belgium would have every interest in applying its unlimited
recovery law to adequately compensate the Belgian victim ; and
(3) France could not object to the application of Belgian law, which is
identical to French law.
In American terms, this would be a classic “false conflict”, in which
only Belgium has an interest in applying its law. To be sure, people who
reject the notion that states have an interest in the outcome of disputes
between private parties also reject the concept of a false conflict and are
unlikely to be persuaded by the above argument. Fair enough, but the
question remains whether the application of the Kenyan law of damages
in this case is a good idea. If the answer is yes, the inquiry ends there.
If the answer is no, then the next question is whether, as written, the
“manifestly closer connection” escape of paragraph 3 would allow the
application of a different law. Wishful thinking aside, it would very
difficult to persuade a court that “the tort” (i.e., the whole tort, as
opposed to the issue of damages in this tort) is “manifestly more closely
connected” with either France or Belgium as compared to Kenya. By
contrast, the much briefer and simpler escape clause found in the un-
enacted Benelux law would have allowed a court to avoid the application
of Kenya law by finding that, with regard to the issue of damages, “the
consequences of a wrongful act belong to the legal sphere of a country
other than [Kenya] where the act took place” 1218. Likewise, under the
1217. For additional examples, see Symeonides, “Rome II”, 198-202.

1218. Traité Benelux portant loi uniforme relative au droit international privé,
Art. 14 (1969) (emphasis added). In fact, the drafters of Rome II attempted to foreclose
this possibility by providing in paragraph 1 of Article 4 that the applicable law is
escape of the English statute, a court would compare the “significance

of the factors” connecting the case with the three countries and conclude
that it would be “substantially more appropriate” to apply either French
or Belgian law “for determining the issues arising in the case, or any
of those issues”, which in our hypothetical is the issue of damages 1219.
2. Issue-by-issue deployment

The failure to allow issue-by-issue deployment and evaluation is the
second major problem with the Rome II escape (and similar escapes).
The clause not only avoids the dirty word “issue”, but also avoids the
phrase “obligation arising out of a tort/delict”, which is used earlier
in the same article 1220. For the escape clause to apply, the entire “tort/
delict” must be “manifestly more closely connected” with another
state, in which case the law of that state will apply to the entire “tort/
delict”, not merely to parts or aspects of it. Thus, the escape is an “all
or nothing” proposition, and therein lies its most serious flaw. In the
Kenyan hypothetical, one cannot credibly argue that the entire tort is
“manifestly more closely connected” with either France or Belgium.
However, one can credibly – indeed, persuasively – argue that one
aspect of the dispute, that is, the issue of the amount of damages, is so
connected.
In another publication, this author attempted to illustrate the flaws
of the Rome II escape through six hypothetical scenarios 1221. That
discussion is not repeated here, but its conclusion remains that although
the inclusion of an escape clause in Rome II is a significant step in the
right direction, the escape would have benefited from more nuanced
and flexible drafting. The drafters’ preference for a tight escape that
does not swallow the rules is understandable. However, an escape that
is so tight as to be rarely utilized, or one phrased in broad, all-or-nothing
terms, is only slightly better than no escape at all.
“the law of the country in which the damage occurs irrespective of the country in
which the event giving rise to the damage occurred and irrespective of the country
or countries in which the indirect consequences of that event occur” (emphasis
added).
Fortunately, like the rest of paragraph 1, the italicized phrase is also subject to the
escape clause of paragraph 3.
1219. English codif., Art. 12 (emphasis added).
1220. Rome II, Art. 4 (1) (emphasis added). This phrase could allow a separate
evaluation of the potentially multiple obligations that may arise from the same facts,
such as (but not only) when the case involves multiple tortfeasors or victims.
1221. See Symeonides, “Reciprocal Lessons”, 1773-1782.
The reasons for the EU Council and Commission’s political

preference for certainty over flexibility are obvious. The primary
motive behind the movement to draft Rome II, as well as the choice
of the particular instrument for its implementation (a regulation as
opposed to a directive), was the need to ensure uniformity of choice-
of-law decisions within the European Union 1222. These two bodies
must have concluded that uniformity would be in jeopardy if Rome II
were to include too many flexible rules or escape clauses. Although
plausible, this is not necessarily the best conclusion. The argument
that a codification to be applied by courts in different countries cannot
afford to be flexible is highly overrated. For example, regardless of its
other faults, the Rome Convention did not fail for being too flexible.
Moreover, while no one would question the desirability of uniformity
and certainty, one can question the extent to which these values should
displace all other values of the choice-of-law process, such as the
need for sensible, rational, and fair decisions in individual cases. If
the American experience has anything to offer, it is a reminder that an
overly rigid system (such as the First Restatement) ultimately fails to
deliver the promised predictability because, in a democratic society,
no system can “mechanize judgment” 1223. To the extent that a system
attempts to do so, judges will largely ignore it 1224. Certainly, it would
be unfair to characterize Rome II as a mechanical system – its drafters
were conscious of the need for flexibility and attempted to provide it to
some degree. Whether they provided for enough flexibility, though, is a
question on which reasonable minds can differ.
Section 5. The Movement toward Flexibility

A. The perennial tension
The tension between the need for legal certainty and predictability,
on one hand, and the desire for flexible, equitable, and individualized
1222. See Rome II, recital (6) (“The proper functioning of the internal market creates
a need, in order to improve the predictability of the outcome of litigation, certainty as
to the law applicable and the free movement of judgments, for the conflict-of-law rules
in the Member States to designate the same national law irrespective of the country of
the court in which an action is brought”).
1223. D. Cavers, “Restatement of the Law of Conflict of Laws”, 44 Yale LJ 1478,
1482 (1935).
1224. In Russell Weintraub’s words, “Ironically Rome II is more likely to succeed
in providing reasonable foreseeability if its rules provide sufficient flexibility.”
R. Weintraub, “Rome II and the Tension between Predictability and Flexibility”, 19 Riv.
dir. int’le priv. e process. 561, 561 (2005).
solutions on the other, is as old as the law itself. Aristotle described it

more than 23 centuries ago, when he spoke of the need for equity as a
corrective of the written law 1225. Twenty centuries later, Jean Jacques
Rousseau noted, “The inflexibility of the laws, which prevents them
from adapting themselves to circumstances, may, in certain cases,
render them disastrous.” 1226 In the twentieth century, René David, the
distinguished French comparatist, wrote,
“There is and will always be in all countries, a contradiction
between two requirements of justice : the law must be certain
and predictable on one hand, it must be flexible and adaptable to
circumstances on the other.” 1227
PIL is not immune from that contradiction ; in fact, PIL may be
particularly susceptible to it 1228.
Every legal system has wrestled with this contradiction, and has
striven to attain an appropriate equilibrium between the two competing
yet necessary goals. Naturally, this equilibrium differs not only between
systems, but also between subjects and time periods. This chapter
has described the parallel but unequal efforts of two different types
of systems to attain this equilibrium : (1) codified PIL systems have
made a moderate move toward flexibility by adopting softer connecting
factors and introducing escape clauses 1229 ; (2) the American system
1225. Supra footnote 1164.

1226. See J.-J. Rousseau, The Social Contract or Principles of Political Right,
Bk. IV, Chap. VI, 84 (1762) (Kessinger Publ., 2004) (“The inflexibility of the laws,
which prevents them from adapting themselves to circumstances, may, in certain cases,
render them disastrous . . . The order and slowness of the forms they enjoin require
a space of time which circumstances sometimes withhold. A thousand cases against
which the legislator has made no provision may present themselves, and it is a highly
necessary part of foresight to be conscious that everything cannot be foreseen”).
1227. R. David, English Law and French Law 24 (1980). See also B. Audit, “Le
droit internationale privé en quête d’universalité”, 305 Recueil des cours 9, 328 (2003)
(“Toute la discipline du droit est dominée par une antinomie entre la certitude que
procurent des règles et le souci d’équité qui incite à se prononcer en fonction de chaque
cas”). Cf. R. Pound, Interpretations of Legal History 1 (1967) (“[L]aw must be stable,
and yet it cannot stand still”).
1228. See, e.g., H. Neuhaus, “Legal Certainty versus Equity in the Conflict of
Laws”, 28 Law & Contemp. Probs. 795, 795 (1963) (juxtaposing the need for “equal
and foreseeable rules of law which enable those who are subject to them to order their
behavior in such a manner as to avoid legal conflict or to make clear predictions of
their chances in litigation” with the desire “for deciding current, concrete disputes
adequately, by giving due weight to the special and perhaps unique circumstances of
each case”).
1229. As Kahn-Freund notes,
“[T]he softening of connecting concepts . . . is an almost inevitable reaction
to growing complexities of social and economic life, an attempt . . . to adjust the
has careened from certainty to flexibility by essentially abandoning all

rules and hence connecting factors 1230.
B. The American overreaction
On the American side, two scholars were primarily responsible

for this development : Joseph Beale and Brainerd Currie. Beale was
responsible for the unyielding inflexibility of the First Restatement’s
rules, and Currie was responsible for the overreaction to those rules.
The irony is that Beale knew better. As written in Beale’s 1934 treatise :
“The whole history . . . of law is the history of alternate efforts
to render the law more certain and to render it more flexible. . . .
[T]o a period of strict law, where the one purpose of law is to
secure exactness and certainty, succeeds a period . . . in which
the purpose is . . . to temper the exactness of the strict law with
a flexibility that may enable it to perform its function more
justly.” 1231
Thus, Beale unintentionally described the problem with his own
Restatement – it ushered a “period of strict law”, which was bound to
be succeeded by a period of flexibility. The next problem, however,
was not Beale’s creation. The responsibility belongs to one of Beale’s
principal detractors, Currie, who did not condemn only Beale’s rules,
but all rules in general 1232. The overreaction, and the fact that it found
a following among the courts, explains why American conflicts law
chose the road of revolution rather than evolution.
The revolution changed American conflicts law in many beneficial,
and some inevitable, ways 1233. However, one change that was neither
beneficial nor inevitable was the denouncement of all choice-of-law
rules, instead of their overhaul. The revolution did not aspire to, or
principles of the conflict of laws to a changing environment.” O. Kahn-Freund,

“General Problems of Private International Law”, 143 Recueil des cours 139, 406
(1974).
1230. This statement is limited to tort and contract conflicts, which have been the
arena of the choice-of-law revolution and comprise the lion’s share of conflicts cases
in the United States.
1232. See Currie, Selected Essay 180 (“The [traditional] rules . . . have not worked
and cannot be made to work . . . But the root of the trouble goes deeper. In attempting
are bad . . . but rather from the fact that we have such rules at all”). See also ibid., at
183 (“We would be better off without choice-of-law rules”).
1233. See Symeonides, Revolution 419-421.
produce, a new rule system to replace the old. Rather, the revolution
offered conflicting and open-ended “approaches”, all of which required
an individualized handling of each case. The result was that, in the first
two decades of the revolution, American conflicts law began looking
like “a tale of a thousand-and-one-cases” in which “each case [was]
decided as if it were unique and of first impression” 1234.
Just as the First Restatement had moved too far toward certainty to
the exclusion of flexibility, the revolution went too far in its infatuation
with flexibility. The overreaction had its own price tag – while
flexibility is preferable to uncritical rigidity, too much flexibility can be
as problematic as no flexibility at all 1235. Besides increasing litigation
costs 1236 and wasting judicial resources 1237, too much flexibility often
leads to judicial subjectivism and dissimilar handling of similar cases,
which tests society’s faith in the legal system and tends to undermine
its legitimacy 1238.
It took half a century to begin the process of reversing the revolution’s
excesses. In 2015, 52 years after the revolution began, and 50 years
after Currie’s death, the American Law Institute began to work on a
1234. P. J. Kozyris, “Interest Analysis Facing Its Critics”, 46 Ohio St. LJ 569, 578,
580 (1985).
1235. See Kozyris, ibid. (“[A]ny system calling for open-ended and endless soul-
searching on a case-by-case basis carries a high burden of persuasion”) ; M. Rosenberg,
“Comments on Reich v. Purcell”, 15 UCLA L. Rev. 641, 644 (1968) (“The idea that
judges can be turned loose in the three-dimensional chess games we have made of
[conflicts] cases, and can be told to do hand-tailored justice, case by case, free from the
constraints or guidelines of rules, is a vain and dangerous illusion”).
1236. See P. Borchers, “Empiricism and Theory in Conflicts Law”, 75 Ind. LJ
509 (2000) (“[T]he extreme flexibility of the modern approaches probably brings
increased litigation costs, in particular through the need to prosecute appeals . . . [T]he
ever‑present wild card of choice of law may discourage settlement”).
1237. See P. J. Kozyris, “The Conflicts Provisions of the ALI’s Complex Litigation
Project : A Glass Half Full ?”, 54 La. L. Rev. 953, 956 (1994) (“Conflicts theorists . . .
have been notoriously indifferent to the issue of efficiency, treating every case as a
unique specimen calling for custom-made handling on the tacit assumption that litigation
resources are infinite”) ; P. Borchers, “Back to the Past : Anti-Pragmatism in American
Conflicts Law”, 48 Mercer L. Rev. 721, 724 (1997) ; E. O’Hara and L. Ribstein, “From
Politics to Efficiency in Choice of Law”, 67 U. Chi. L. Rev. 1151 (2000) ; S. Wiegand,
“Fifty Conflict of Laws ‘Restatements’ : Merging Judicial Discretion and Legislative
Endorsement”, 65 La. L. Rev. 1 (2004). See also Kaczmarek v. Allied Chem. Corp., 836
F. 2d 1055, 1057 (7th Cir. 1987) (Posner, J.).
1238. See P. J. Kozyris, “Conflicts Theory for Dummies : Après le Deluge, Where
Are We on Producers Liability ?”, 60 La. L. Rev. 1161, 1162 (2000) (“[T]elling the
courts in each conflicts case to make a choice and fashion the applicable law ‘ad hoc’
and ‘anew’ . . . as is often done under the prevailing conflicts theories, appears to
me to be not only inconsistent with the basic principles of separation of powers, not
only burdensome and potentially arbitrary beyond reason, not only disorienting to the
transacting person, but also essentially empty of meaning . . . [U]npredictable law is
not law to begin with”).
Third Conflicts Restatement 1239. To be sure, no one advocates for a

return to the rigidity of the First Restatement. Even Beale admitted that,
in the movement from flexibility back to certainty, “the law does not go
back to its earlier exactness, but remains with a more flexible content
than the strict law [of the past]” 1240. One can hope, however, that the
Third Restatement will provide more certainty than the Second, while
preserving the substantive and methodological accomplishments of the
revolution 1241.
C. A cautious evolution

During the same period in which the American choice-of-law revo-
lution careened “from rigid conservatism to apparent anarchism” 1242,
other PIL systems – especially those in Europe – began moving toward
flexibility, but in a much slower and more deliberate fashion. As many
European scholars recognize, this movement “can be attributed . . . to
the reverberations the American conflicts revolution had in the rest of
the world” 1243. The ideas generated by the American choice-of-law
revolution were “hotly debated” as a “viable alternative” 1244. Further,
1239. For the background of this decision and this author’s involvement, see
S. Symeonides, “A New Conflicts Restatement : Why Not ?”, 5 J. Priv. Int’l L. 383
(2009) ; S. Symeonides, “The Choice-of-Law Revolution Fifty Years after Currie : An
End and a Beginning”, 2015 U. Ill. L. Rev. 847 (2015).
1241. For specific suggestions on how to accomplish both goals, see Symeonides,
“Fifty Years after Currie”, supra, footnote 1239, 1904-1921.
1242. F. K. Juenger, “American and European Conflicts Law”, 30 Am. J. Comp. L.
117, 125 (1982).
1243. De Boer, “Living Apart Together”, 203 (“In short, the dissatisfaction
with traditional choice of law may have caused a methodological revolution in the
United States, but it did not fail to affect the development of choice of law in other
jurisdictions, especially in Europe, even if they remained faithful to traditional choice-
of-law conceptions. Their conflicts rules no longer depend on abstract geographical
factors alone. There is room for flexibility in the designation of the applicable law.
Substantive values and policies have been translated into connecting factors focusing
on the weaker party, or into alternative reference rules favoring a specific substantive
result. These changes can be attributed, I think, to the reverberations the American
conflicts revolution had in the rest of the world”). For a more nuanced position, see
P. Lagarde, “Le principe de proximité dans le droit international privé contemporain”,
196 Recueil des cours 9, 25 (1986) (noting that although it did not have “a significant
direct influence” on European PIL, the American choice-of-law revolution prompted
European scholars, judges and legislators “to reconsider their methods and solutions”).
1244. De Boer, “Living Apart Together”, 202 (“Initially, a new generation of
conflicts scholars, dissatisfied with mechanical, inflexible rules, set great store by the
fresh approach laid open by Currie and his kindred spirits. In Europe, in the 1970s and
1980s, interest analysis was hotly debated, a sure sign that it was considered by some
as a viable alternative to the allocation method, by others as a serious threat to the
universalist ideals they still cherished”).
“American thinking has pervaded [European PIL] by osmosis” 1245.

However, the debate did not have the transformative effect that the
scholastic revolution had in the United States, where it precipitated
and guided the judicial revolution 1246. European judges, and eventually
legislators, also paid attention to the debate. In the end, however, they
used some of these ideas but rejected the means. Europe chose evolution
over revolution, gradually and carefully repairing the old rules rather
than jettisoning them. The softening of connecting factors and the
introduction of escape clauses discussed in this chapter are some of the
main tools used in that overhaul.
The training and mindset of European judges and legislators, and
European legal history in general, can best explain the choice of
evolution. One contributing factor may be that, as Erik Jayme observes,
“European judges”, and indeed legislators, “took advantage of the fact
that they were to decide later than their American colleagues” 1247, and
thus could selectively draw from the American experience without
repeating its excesses. Instead of abandoning traditional rules in
favour of ad hoc “approaches”, they injected small, controlled doses
of flexibility through new devices, as well as through some old and
tested ones. As one German author notes, as a result of these develop-
ments :
“[T]he original severity of [PIL’s] forms has been mitigated ;
the previous strictness of its structures has been moderated ; the
former rigidity of the rules has been loosened ; the old crampedness
of the principles has been broken. The conflict rules . . . and the
connecting factors . . . have become decidedly more diverse and
flexible than before . . . and sophisticated exception clauses,
elaborate evasion clauses and intricate escape clauses have been
designed.” 1248
1245. E. Jayme, “The American Conflicts Revolution and Its Impact on European
Private International Law”, in Univ. van Amsterdam Centrum voor Buitenlands Recht
en IPR (eds.), Forty Years On : The Evolution of Postwar Private International Law
in Europe 15, 24 (1992). Although Jayme’s statement refers only to the German
codification, the statement can also be made about European conflicts law in
general.
1246. See Symeonides, Revolution 9-35 (scholastic revolution), 37-62 (judicial
revolution). For the view that European judges have been as creative as American
Judges, see F. K. Juenger, “American and European Conflicts Law”, 30 Am. J. Comp.
L. 117, 127-128 (1982).
1247. E. Jayme, “The American Conflicts Revolution”, at 22.
1248. Martinek, “Seven Pillars”, para. 6.1.
D. Codification and flexibility
The softening of factors and introduction of escape clauses discussed

in this chapter refute some of the standard arguments against codification.
One argument is that codification arrests the smooth development of
the law, by freezing it in time and preventing its adaptation to changing
needs 1249. Another argument is that codification usually paints with too
broad of a brush 1250, and is too inflexible to properly resolve certain
exceptional or unanticipated cases 1251.
These arguments are encountered more frequently in common
law systems, where judges are viewed as the principal players, and
legislators as only occasional participants, in the lawmaking process 1252.
A common assumption is that countries that have not codified their
choice of law place a higher premium on flexibility, while countries
that have adopted a codification place a higher premium on certainty.
As a general proposition, this assumption is not erroneous. After all, a
PIL codification is supposed to provide legal certainty by choosing the
applicable law in advance, rather than leaving the choice to courts on a
case-by-case basis.
The validity of these arguments depends on the style and philosophy
of a particular codification. For example, a codification consisting of
inflexible, mechanical rules (like those of the Prussian Civil Code of
1763 or the First Conflicts Restatement) is a recipe for petrification and
lends credence to the arguments against codification 1253. However, as
1249. See, e.g., B. Currie, “Comments on Babcock v. Jackson”, 63 Colum. L. Rev.

1233, 1241 (1963) (“[N]ew efforts to find short cuts and syntheses should be sternly
discouraged. We are beginning to recover from a long siege of intoxication resulting
from overindulgence in generalities ; for a while, at least, total abstinence should be
enforced”) ; R. Sedler, “Reflections on Conflict‑of‑Laws Methodology”, 32 Hastings
LJ 1628, 1636 (1981).
1250. See, e.g., D. Trautman, “Reflections on Conflict-of-Laws Methodology”,
32 Hastings LJ 1612, 1621 (1981) (“[L]egislative direction is inherently incapable of
capturing the nuance and sophistication necessary for just and satisfactory choice‑of‑law
solutions”).
1251. See, e.g., W. Reese, “Statutes in Choice of Law”, 35 Am. J. Comp. L. 395, 396
(1987) (“No legislature, no matter how wise it may be, could envisage all of the almost
endless possibilities”).
1252. For the United States in particular, these arguments are discussed in
Symeonides, Revolution 411-419 ; Symeonides, “A New Conflicts Restatement”, 406-
422.
1253. Nevertheless, the decision to adopt statutory rules need not result in outlawing
judicial discretion. As early as 1804, the redactors of the Code Napoléon recognized
the simple truth that had escaped the drafters of the Prussian Code of 1794 : that for
the legislateur “to anticipate everything is a goal impossible of attainment”. Portalis,
Tronchet, Bigot-Préameneu and Maleville, “Texte du discours préliminaire”, in
J. Locré, La legislation civile, commerciale et criminelle de la France 251, 255 (Vol. 1,
the preceding discussion illustrates, the art or science of codification has

advanced significantly, and has developed tools for avoiding petrification
and ensuring flexibility. These tools include soft connecting factors,
escape clauses, or a combination of rules and residual approaches that
inject controlled doses of flexibility, and thus help attain an equilibrium
between certainty and flexibility. Thus, codification in general, and PIL
codification in particular, need not petrify the law or render it unduly
inflexible for exceptional cases. Codification does not necessarily
outlaw judicial discretion.
To be sure, one may question whether this equilibrium is the “right” one
in every case. For example, the above-quoted German author concludes
that, although in recent years PIL “has enormously gained refinement,
flexibility, diversity and sophistication”, certainty and foreseeability
have nevertheless “suffered, and so has the old ideal of an international
harmony . . . [T]he dangers of such an over-flexibility, however, are at
hand.” 1254 Conversely, one can argue from the American perspective
that most modern choice-of-law codifications do not provide enough
flexibility. The rules and escapes of these codifications are phrased not
in terms of issues and policies, but rather with terms that are either
(a) too holistic – geared to the whole case rather than to aspects or
issues of it ; or (b) too geographic, e.g., “closer” connection 1255.
Certainly, this is a matter on which reasonable minds can differ. Gains
in flexibility will always produce corresponding losses in certainty, and
vice versa. Questions of whether the losses outweigh the gains will
always exist ; the search for the “right” equilibrium is as perpetual as the
tension identified by Aristotle 23 centuries ago. But, in the meantime,
let us agree that as a result of the developments discussed above, the
choice-of-law process “has enormously gained refinement, flexibility,
diversity and sophistication” 1256.
There is no question – at least in this author’s mind – that the softening
of connecting factors and the introduction of escape clauses represent a
1827) (Consequently, the legislator’s role is “to set, by taking a broad approach, the
general propositions of the law, [and] to establish principles which will be fertile in
application. . . . It is for the judge and the jurist, imbued with the general spirit of the
laws to direct their application”).
1254. Martinek, “Seven Pillars”, para. 6.1 (emphasis added).
1255. For a detailed discussion of this point, see Symeonides, “Reciprocal Lessons”,
1773-1782.
1256. Martinek, “Seven Pillars”, para. 6.1
significant improvement in codified PIL systems. The flexibility of these

tools provide makes it more likely that courts will reach appropriate
solutions to complex choice-of-law problems ; however, flexibility also
has an important, and for some observers undesirable, side effect. It
moves PIL farther away from Savigny’s requirement for “definite”
seats, which was a predicate for achieving international uniformity 1257.
For example, there is no assurance that courts in different states will
share the same understanding of the concept of the “closest connection”,
or that they will apply it in the same way to specific cases. These are
additional reasons for which international uniformity has become more
elusive than ever before.
1257. As Lutz-Christian Wolff notes, “Flexibility would not be an option in

[Savigny’s] categorical system which aimed to ensure global uniformity in terms of
choice-of-law decisions.” L-C. Wolff, “Flexible Choice-of-Law Rules : Panacea or
Oxymoron ?”, 10 J. Priv. Int’l L. 431, 444 (2014).
CHAPTER VIII
THE NARROWING OF LEGAL CATEGORIES
Section 1. The Classical Model : “Legal Relations”

One of the differences between unilateralism and multilateralism is
that the former viewed PIL as a problem of choosing between conflicting
laws, whereas the latter viewed it as one of choosing between states or
legal systems. In Ehrenzweig’s words, the defeat of statutist unilateralism
“translated the conflictus legum into a conflictus ordinum” 1258. Within
this framework, Savigny sought to identify “for each legal relation”
the legal system to which the relation “belongs” 1259. Thus, Savigny’s
focus was on legal systems and on “legal relations”, the latter of which
he conceived expansively by borrowing the then established broad
categories of private law : status, property (subdivided into movables
and immovables), obligations, succession, family law, and the form of
juridical acts. The classical PIL model, which the civil law world built
on Savigny’s vision, retained these two attributes. In the words of great
comparatist Ernst Rabel, the aim of PIL is to identify the “system” that
“governs the case . . . as a whole” 1260. As Peter Hay recently noted,
European choice-of-law rules “provide for the law applicable to ‘THE
contract or to ‘THE tort’ ” 1261, as opposed to aspects of, or issues in, a
contract or tort 1262.
The rationale for this focus on broad categories is what civilians call
“systemic coherence” 1263, or “material harmony” 1264, which must be

1259. Savigny, Treatise, at 70 (emphasis added).
1260. 1 E. Rabel, The Conflict of Laws : A Comparative Study 72 (2nd ed., 1958).
1261. P. Hay, “European Conflicts Law after the American “Revolution” –
Comparative Notes”, 2015 U. Ill. L. Rev. 2053, at 2066 (2015).
1262. See F. Vischer, “General Course”, at 36 :
“The relevant connecting factor refers this relationship to a legal order
which . . . governs all legal questions arising from the relationship. Thus, the
relationship defines the scope of the conflict rule. . . . Normally, a legal order as
a whole and not a single provision of law is designated. The bilateral approach
therefore in principle selects a (legislative) jurisdiction, not a rule. Certainly,
the conflict rule can and often should deal with a narrow issue within a legal
relationship. But the bilateral system does normally not weigh rule against rule.”
1263. Struycken, “Co-ordination and Co-operation”, 255.
1264. F. Vischer, “Drafting National Legislation on Conflict of Laws : The Swiss
Experience”, 41 Law & Contemp. Probs. 131, 137-138 (1977).
protected against the “segmentation” of legal relations and the attendant

possibility of applying different laws to the resulting segments 1265.
Frank Vischer, the principal drafter of the Swiss codification, points
out “the necessity of maintaining the inner harmony existing in one
law and of not disrupting it by the play of conflicts rules” 1266. This
concern for “material harmony” and “the danger of contradictory
solutions resulting from reference of different aspects of a question to
different laws” 1267 has produced what Tim Dornis characterizes as a
“the civil-law phobia of dépeçage” 1268. We shall return to this point
after discussing the American position on this matter, which is far more
receptive to dépeçage.
Section 2. American Developments
A. From broad categories to issues

Joseph Beale, the drafter of the First Conflicts Restatement, subscribed
to the same concern for material harmony and avoidance of excessive
fragmentation of legal relations. This is why the Restatement’s rules
were excessively broad. For example, the Restatement provided only
one rule (lex loci delicti) for all aspects of, or issues in, a tort conflict 1269
and only one rule (lex loci contractus) for all issues of contract formation
and validity 1270. Section 332 of the Restatement provided that the
law of the place of contracting determined, inter alia, the issues of :
(a) capacity to contract ; (b) the necessary form ; (c) the need for
mutual assent or consideration ; and (d) fraud, illegality, and any other
ground of invalidity 1271.
1265. See Struycken, “Co-ordination and Co-operation”, at 256 (“This systemic

coherence is badly affected by each segmentation”).
1266. Vischer, “Drafting National Legislation”, at 138. See also ibid., (“Whenever
a coherent legal relationship is involved, the tendency is not to dismantle it by splitting
it up into numerous separate issues. Material harmony, rightly regarded as a goal of
high value, should not be sacrificed to the demand that conflicts rules should select
rules only”).
1267. Ibid.
1268. T. W. Dornis, “Local Data”, in J. Basedow et al. (eds.) Encyclopedia of PIL
(2017).
1269. See Restatement (First) of Conflict of Laws, § 378 (1934). Although the
Restatement contained several sections designating the law applicable to different
aspects of a tort (see ibid., §§ 379–390), all of those sections (with minor exceptions)
dictated the application of the same law – the law of the place of injury.
1270. The Restatement provided a second rule (lex loci solutionis) for all issues of
performance. See Restatement (First), § 358.
1271. Ibid., § 332.
Such a broad rule as the one in Section 322 assumes that each of
the above issues involves the same choice-of-law considerations
and thus the application of the same law (the lex loci contractus) is
equally appropriate for any one and all of them. In practice, though,
whenever this assumption proved inaccurate, the rule failed to produce
an apt solution to the conflict at hand. Indeed, these broad rules were
inimical to flexibility and aptness because they required courts to make
wholesale choices rather than narrow choices tailored to the needs of
individual cases.
The excessive breadth of these rules was one of the reasons for
the American choice-of-law revolution. In the seminal case Babcock
v. Jackson 1272, which marked the beginning of the revolution in tort
conflicts, the New York Court of Appeals asks an important question :
whether the lex loci delicti should “invariably govern the availability
of relief for the tort” 1273. The court ultimately answers this question
by concluding that the governing law should be the law of the state
which, “because of its relationship or contact with the occurrence or
the parties, has the greatest concern with the specific issue raised in the
litigation” 1274.
B. Issue-by-issue analysis

The italicized words in the above-quoted phrases illuminate one
important feature of the court’s approach : “issue-by-issue analysis”.
The word “invariably” suggests that the court did not seek a wholesale
abandonment of the lex loci delicti rule, but rather sought to narrow its
scope to the particular issue on which the laws of the involved states
actually conflicted. The court no longer thought in broad, global terms,
such as which law should govern the tort as a whole. As the court
notes, “[T]here is no reason why all issues arising out of a tort claim
must be resolved by reference to the law of the same jurisdiction.” 1275
In Babcock, the conflict was confined to a single issue – the driver’s
1272. Babcock v. Jackson, 191 NE 2d 279, 279 (NY 1963). Babcock involved
an intrastate tort, a single-car accident, which occurred in the Canadian province of
Ontario, but in which both the defendant-driver and his injured passenger, the plaintiff,
were domiciled in New York. Ontario had a “guest statute”, which would bar the
passenger’s action because of her status as a gratuitous guest in the defendant’s car. The
court refused to apply that statute and instead applied New York law, which allowed
the action.
1273. Ibid., at 280-281.
1274. Ibid., at 283 (emphasis added).
1275. Ibid., at 285.
immunity from suit because of the Ontario guest-statute, and the absence
of such an immunity rule in New York 1276. The court concluded that the
state that had the “greatest concern” with regard to that issue was not
the state of the tort, Ontario, but rather the state in which both parties
were domiciled and had established their relationship, New York 1277.
Since Babcock, this mode of thinking, now known as “issue-by-
issue analysis”, has become an integral feature of all the approaches
produced by the choice-of-law revolution and followed in the more
than 40 states that have abandoned the first Restatement in tort and
contract conflicts 1278. This is true of Currie’s “governmental interest
analysis” which had influenced the Babcock court, as well as of the
Restatement (Second), which is now followed in the plurality of states.
Virtually all of the Restatement (Second)’s rules call for the application
of the law of the state that, “with respect to the particular issue”, has
the “most significant relationship”. For example, Section 145 provides
that the parties’ rights and liabilities “with respect an issue in tort” are
governed by the law of the state that, “ ‘with respect to that issue’, has
the most significant relationship to the occurrence and the parties” 1279.
The accompanying comments reiterate that “[e]ach issue is to receive
separate consideration if it is one which would be resolved differently
under the local law rule of two or more of the potentially interested
states” 1280.
Likewise, all of the Restatement (Second)’s myriad escape clauses
are tightly tied to the “particular issue”. For example, all ten of the
Restatement sections that designate the law governing different types
of torts conclude with the following escape clause : “[U]nless, with
respect to the particular issue, some other state has a more significant
relationship.” 1281 This clause is one of the most repeated phrases in the
1276. See op. cit. supra footnote 1272, at 284 (“The issue here . . . is not whether
the defendant offended against a rule of the road prescribed by Ontario for motorists
generally or whether he violated some standard of conduct imposed by that jurisdiction,
but rather whether the plaintiff, because she was a guest in the defendant’s automobile,
is barred from recovering damages for a wrong concededly committed”).
1277. Ibid., at 283.
1278. According to the latest count, only 10 states continue to follow the first
Restatement in tort conflicts and 12 do so in contract conflicts. See S. C. Symeonides,
“Choice of Law in the American Courts in 2015 : Twenty-Ninth Annual Survey”, 64
Am. J. Comp. L. 221, 292 (2016).
1280. Ibid., cmt. d.
1281. For example, in an action for an invasion of privacy, the applicable law is the
local law of the state where the invasion occurred, “unless, with respect to the particular
issue, some other state has a more significant relationship”. Ibid., § 152.
entire Restatement 1282. Willis Reese, the drafter of the Restatement

(Second), wrote that issue-by-issue analysis was one point on which all
divergent approaches that emerged from the American choice-of-law
revolution could agree 1283.
Issue-by-issue analysis is one of the few true achievements of choice-
of-law thinking in the United States. It is based on the elementary
realization that, in many cases, the conflict is confined to only one issue
(or less than all issues) in a case, and that the involved states may be
interested in different issues 1284. Consequently, rather than seeking to
choose a law as if all aspects of the case are contested, one should focus
on the narrow issues with regard to which a conflict actually exists
and proceed accordingly. This mode of analysis is a welcome return to
the familiar schemes of common law decision-making, which typically
proceeds with small, cautious steps of inductive reasoning. Issue-by-
issue analysis is more conducive to a nuanced, individualized, and thus
more rational, resolution of conflicts problems 1285.
C. Dépeçage
1. What is dépeçage ?

Issue-by-issue analysis means that if a case (or, more precisely, a
cause of action) comprises more than one issue on which the substantive
laws of the involved states conflict, each issue should be subjected
1282. See, e.g., Restatement (Second), §§ 146-151, 153-155, 175. In contract con-
flicts, the “unless” clause appears in most of the sections devoted to particular contracts.
See, e.g., ibid., §§ 189-193, 196.
1283. See W. L. M. Reese, “Dépeçage : A Common Phenomenon in Choice of
Law”, 73 Colum. L. Rev. 58, 58 (1973) (“Amid the chaos and tumult of choice of law
there is at least one point on which there seems to be general agreement in the United
States. This is that choice of applicable law should frequently depend upon the issue
involved. The search in these instances is not for the state whose law will be applied to
govern all issues in a case ; rather it is for the rule of law that can most appropriately be
applied to govern the particular issue”).
1284. See Simon v. Philip Morris Inc., 124 F. Supp. 2d 46, 75 (EDNY 2000) (“[I]n
a single action different states may have different degrees of interests with respect to
different operative facts and elements of a claim or defense”) ; In re Aircrash Disaster
Near Roselawn, Ind. on Oct. 31, 1994, 926 F. Supp. 736, 740 (ND Ill. 1996) (“[I]t is
important to understand that the search for the applicable law is not a general one,
but rather it is one that takes proper notice of the fact that the significance of a state’s
relationship to a particular aviation disaster may vary as a function of the particular
issue presented”).
1285. A. T. von Mehren, “Special Substantive Rules for Multistate Problems : Their
Role and Significance in Contemporary Choice of Law Methodology”, 88 Harv. L. Rev.
347, 356 n. 24 (1974) (“Th[is] technique permits a more nuanced handling of certain
multistate situations and thus forwards the policy of aptness”).
to a separate choice-of-law analysis. If such an analysis leads to the

application of the substantive laws of different states to the different
issues, then the resulting phenomenon is called “dépeçage” 1286. Thus,
dépeçage is the application of the substantive laws of different states
to different issues of the same cause of action. It is a possible but not
inevitable by-product of issue-by-issue analysis 1287.
Because Babcock was a single-issue conflict, the court did not need
to resort to dépeçage in the sense of actually applying the laws of two
different states. But the court clearly signalled its readiness to engage
in dépeçage by stating in dicta that it would have applied Ontario law,
“had the issue related to the manner in which the defendant had been
driving his car at the time of the accident . . . [or to] the defendant’s
exercise of due care” 1288.
Through these dicta the court enunciated an important distinction
between : (1) issues of conduct regulation, such as “[W]hether the
defendant offended against a rule of the road prescribed by Ontario for
motorists generally or whether he violated some standard of conduct
imposed by that jurisdiction” ; and (2) loss-distribution issues, such as
the one actually involved in Babcock, namely, “[W]hether the plaintiff,
because she was a guest in the defendant’s automobile, is barred from
recovering damages for a wrong concededly committed.” 1289 Adopting
the same distinction, the Restatement (Second) endorsed the application
of the laws of different states to these two categories of issues 1290.
1286. This French (which literally means the “dismemberment” of the case) has
come to prevail in American legal literature, although some French writers use the term
morcellement. See 2 H. Batiffol and P. Lagarde, Droit international privé 273 (8th ed.,
1983). But see B. Audit and L. d’Avout, Droit international privé 125, 288 (6th ed.,
2010) (using the term dépeçage and décomposition, respectively).
1287. Cf. 1 A. Ehrenzweig, Private International Law 119 (1972) (characterizing
dépeçage as “an unavoidable facet of a theory to which reference to a foreign ‘law’
signifies reference to an individual foreign rule rather than an entire legal system”).
1288. Babcock v. Jackson, 191 NE 2d 279, 284 (NY 1963). In such a case, the court
notes that “it would be almost unthinkable to seek the applicable rule in the law of some
other place”. Ibid.
1289. Ibid. For extensive discussion of this distinction in American conflicts law,
see Symeonides, Revolution 123-140.
1290. See Restatement (Second), § 145 cmt. d (citations omitted) :
“[F]or example, a state has an obvious interest in regulating the conduct of
persons within its territory and in providing redress for injuries that occurred there.
Thus, subject only to rare exceptions, the local law of the state where conduct and
injury occurred will be applied to determine whether the actor satisfied minimum
standards of acceptable conduct and whether the interest affected by the actor’s
conduct was entitled to legal protection.
On the other hand, the local law of the state where the parties are domiciled . . .
may be applied to determine whether one party is immune from tort liability to the
Babcock involved only the latter issue, the guest passenger’s right
to sue the host-driver, and the court applied to it the law of New York,
the parties’ common domicile 1291. A dépeçage would have occurred if
Babcock also involved the first issue described above – whether the
driver’s conduct violated an Ontario traffic rule – and the court had
applied Ontario law to that issue.
2. What dépeçage is not
Various courts have referred to dépeçage as a “mystical doctrine”, a

plain “doctrine”, a “legal theory”, an “approach”, a “principle”, a “rule”,
a “technique”, or a “process” 1292. Dépeçage is none of the above. It is
not the goal of the choice-of-law process, not even the goal of issue-by-
issue analysis. Rather, dépeçage is the potential and occasional result of
issue-by-issue analysis.
Dépeçage occurs only when the court applies the substantive laws
of different states to different issues in the same cause of action, but
not when it applies its own procedural law and the substantive law of
another state. The latter phenomenon is a standard occurrence in all
multistate cases because, even under the first Restatement, the law of
the forum always governed all procedural issues 1293.
Likewise, dépeçage occurs only when the court applies the sub-
stantive laws of different states to the same cause of action, not the same
case, such as when, in a contract cause of action, the court applies the
law of State A to issues of form and the law of State B to issues of
capacity. If the case consists of two causes of action, e.g., a contract
cause of action, to which the court applies the law of State A, and also
a tort cause of action, to which the court applies the law of State B,
this phenomenon is not, properly speaking, dépeçage. A variation of
the latter phenomenon occurs when the case encompasses two actions
against two unrelated defendants, such as when a car passenger injured
in a two-car collision sues both her host-driver and the driver of the
other car. If the court applies the law of State A to the first action (e.g.,
other[,] . . . whether . . . a guest passenger has a right of action against the driver
of an automobile for injuries suffered as a result of the latter’s negligence[, or] . . .
whether tort claims arising from the injury survive the death of the tortfeasor.”
1291. Babcock, 191 NE 2d, at 284-285.
1292. For citations, see S. C. Symeonides, “Issue-by-Issue Analysis and Dépeçage
in Choice of Law : Cause and Effect”, 45 U. Toledo L. Rev. 751, 757 (2014).
1293. See Restatement (First), § 585 (“All matters of procedure are governed by the
law of the forum”).
the parties’ common domicile) and the law of State B (e.g., the accident
state) to the action against the other driver, the resulting phenomenon is
also not, properly speaking, dépeçage.
3. In the abstract, dépeçage is neither good nor bad
While issue-by-issue analysis is generally beneficial because, as

noted earlier, it introduces the needed flexibility into the choice-of-
law process, dépeçage in the abstract is neither good nor bad, neither
a panacea nor anathema. When dépeçage occurs – and it occurs less
frequently than is commonly assumed – it is innocuous in many cases
and inappropriate in a few cases. Specifically :
(1) In some cases (as in Babcock), there is only one disputed choice-of-
law issue. In those cases, the court applies one law, and thus there
is no dépeçage.
(2) In other cases, there are two or more disputed choice-of-law issues
but the court applies the same law to all issues. Again, there is no
dépeçage.
(3) In other cases, the court applies the laws of different states to two
or more disputed choice-of-law issues. In those cases, and only in
those cases, there is dépeçage.
(a) In some of those cases, dépeçage is totally unproblematic and
innocuous because the applicable laws are entirely congruent.
(b) In the remaining few cases, dépeçage may be problematic, such
as “when used to fragment issues related to a common purpose
or to legitimatize a smorgasbord approach which inures only to
the benefit of the party picking and choosing” 1294.
4. Occasionally, dépeçage is problematic
Brainerd Currie, one of the chief proponents of issue-by-issue analysis,

acknowledged that in some cases dépeçage may be problematic :
“True it is that choice of law must proceed on an issue-by-issue
basis ; but modern conflict-of-laws analysis can make no more
1294. Johnson v. Cont’l Airlines Corp., 964 F. 2d 1059, 1064 (10th Cir. 1992). See
also In re Air Crash Disaster Near Chi., Ill. on May 25, 1979, 644 F. 2d 594, 611
(7th Cir. 1979) (“The task of conflicts analysis using dépeçage requires creativity and
precision”) ; Crucible Materials Corp. v. Aetna Cas. and Sur. Co., 228 F. Supp. 2d
182, 199 (NDNY 2001) (“Dépeçage is an unusual and drastic principle that should be
applied with the greatest trepidation”).
serious mistake than to indulge in an unprincipled eclecticism,

picking and choosing from among the available laws in order
to reach a result that cannot be squared with the interests of any
of the related states. Issue-by-issue analysis should not result
in the cumulation of negative policies to produce a result not
contemplated by the law of either state.” 1295
Currie concluded that such a result would be as anomalous as a
“synthetic hybrid” of “half a donkey and half a camel” 1296.
The question then is how to avoid this “synthetic hybrid” of
incongruous laws, or, in other words, how to distinguish between a
permissible and an inappropriate dépeçage. In this context, it helps
to remember that the term dépeçage can be paraphrased in English as
“picking and choosing”. Generally speaking, picking and choosing is
inappropriate when the rule of the one state that is chosen is so closely
interrelated to a rule of the same state that is not chosen that applying
the one rule without the other would drastically upset the equilibrium
established by the two rules and would distort and defeat the policies
of that state. In those cases, dépeçage is inappropriate and must be
avoided.
Suppose for example that State A, a northern state, requires that
cars driven in the state during the winter months use snow tyres and
consider the failure to use such tyres as “negligence per se”. State B,
a southern state, does not require the use of snow tyres. While driving
in State A without snow tyres, a State B domiciliary causes an accident
resulting in the death of his passenger, also a State B domiciliary.
In such a case, there is little argument that State A has a legitimate
reason to insist on adherence to its snow-tyre rule and on defining the
consequences of non-compliance, and that State B’s no-snow-tyre rule
is simply irrelevant with regard to driving outside its borders. Suppose
further that the two states differ in designating the beneficiaries of
the victim’s survival action. State A designates the victim’s spouse as
the exclusive beneficiary, while State B includes as beneficiaries the
victim’s children. Here again, there is little argument that State B has
the better claim to apply its law to this issue of loss distribution.
In this case, the resulting dépeçage is not inappropriate because the
snow-tyre rule of State A is not closely related, and perhaps not related
1295. Cavers, Process 38 (attributing these words to Brainerd Currie (with Currie’s

approval) in the role of a hypothetical judge).
1296. Ibid., at 39.
at all, to the survival-action rule of the same state. The application

of the former rule and the non-application of the latter would neither
distort nor defeat the policies of that state, nor would it disturb whatever
equilibrium these two rules might establish between deterrence and
compensation. The same is true about the application of State B’s
survival-action rule without State B’s snow-tyre rule.
A different conclusion would follow if, in the same hypothetical,
the conduct-regulating rule and the loss-distributing rule of State A
are closely interrelated and intended to be applied together. Suppose,
for example, that State A’s snow-tyre rule is coupled with a rule that
reduces or increases by 10 per cent the amount of damages that can be
recovered from a defendant, depending on whether the defendant used
snow tyres. In such a case, it would be inappropriate to apply the snow-
tyre rule without its intended companion rule regarding the amount of
recoverable damages.
In other words, in such a case, a dépeçage would be inappropriate,
and the court should avoid it 1297.
As to how an American court can avoid an inappropriate dépeçage,
the answer is easy. Unlike many foreign courts, which are bound
by strict statutory rules, American courts are no longer bound by
inflexible choice-of-law rules that constrict courts to a pre-ordained
result. One common feature of all the approaches that have emerged
from the American choice-of-law revolution is that they grant courts
abundant (and arguably excessive) discretion in deciding multistate
conflicts 1298. Courts use that discretion in engaging in issue-by-issue
analysis, and courts certainly can use the same discretion to avoid an
inappropriate dépeçage. A review of the cases confirms that American
courts are perfectly capable of detecting and avoiding an inappropriate
dépeçage 1299.
1297. By comparison, based on the above definition of dépeçage, there is no

dépeçage (much less an inappropriate dépeçage) when a court : (1) applies non-forum
law to the merits of the case and forum law to all procedural issues ; or (2) applies the
substantive laws of different states to : (a) different causes of action between the same
parties, or (b) actions between different parties.
1298. For documentation and discussion, see Symeonides, Revolution, at 412-413,
418-419, 426-429.
1299. As Ehrenzweig noted almost half a century ago,
“American courts have properly and consistently admitted different rules in
the same case for such often interrelated problems as intra-family or charitable
immunity, guest statutes, damages, survival actions, and statutes of limitation.”
1 A. Ehrenzweig, Private International Law, at 120 (1972).
5. Dépeçage in practice
The prevailing impression is that dépeçage happens often. Willis

Reese called it a “common phenomenon” 1300, and several courts have
agreed, referring to it as “widely applied” 1301, “widely approved” 1302,
and even “routine” 1303. Indeed, it might be logical to assume that,
because all modern approaches followed in more than 40 states endorse
issue-by-issue analysis, dépeçage would be a very frequent occurrence.
It is not, and the reason is simple. As noted above, not every multistate
case involves more than one choice-of-law issue, and cases that involve
several issues are not necessarily resolved by applying the laws of
different states. Indeed, dépeçage is probably more frequent in law
school exam questions than in judicial decisions. A Westlaw search has
identified only 291 cases using the term dépeçage in the 50-year period
since Babcock 1304. Less than a third of those – just 76 – are appellate
cases 1305. Apparently, by the time a case reaches the appellate level, the
number of choice-of-law issues decreases, and those that remain do not
necessarily warrant the application of different laws.
To be sure, there are many cases that actually engage in dépeçage
without using this term 1306. The survey has not identified these cases,
and there is no easy way to count them. But even if the cases not using
1300. W. L. M. Reese, “Dépeçage : A Common Phenomenon in Choice of Law”, 73

Colum. L. Rev. 58, at 58 (1973).
1301. In re Air Crash Disaster at Stapleton Int’l Airport, Denver, Colo., on Nov. 15,
1987, 720 F. Supp. 1445, 1448 n. 3 (D. Colo. 1988) (stating that dépeçage “is widely
applied to the multifaceted issues involved in aviation litigation”) ; Ruiz v. Blentech
Corp., 89 F. 3d 320, 324 (7th Cir. 1996) (noting that dépeçage “has been long applied
in connection with various methods for choice of law”).
1302. Johnson v. Cont’l Airlines Corp., 964 F. 2d 1059, 1062 n. 4 (10th Cir. 1992)
(“Dépeçage is the widely approved process whereby the rules of different states are
applied on the basis of the precise issue involved”).
1303. In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F. 2d 1475, 1495 (DC
Cir. 1991) (noting that dépeçage “is now routine”). See also Schwartz v. Liberty Mut.
Ins. Co., 539 F. 3d 135, 153 (2nd Cir. 2008) (stating that dépeçage “is not altogether
uncommon”).
1304. The search was conducted on 1 October 2013, using the terms “dépeçage”
and “depecage”. Of the 291 cases searched on this date, 48 cases were decided by state
courts and 243 by federal courts. Babcock itself did not use the term dépeçage. The first
case to mention this term (in a citation to a law review article) was Hunker v. Royal
Indem. Co., 204 NW 2d 897, 905 n. 1 (Wis. 1973). The first case to actually use the term
dépeçage was Ardoyno v. Kyzar, 426 F. Supp. 78, 84 (ED La. 1976).
1305. Of the 243 federal cases, 37 cases were decided by courts of appeal and 206
by district courts. Of the 48 state cases, 39 cases were decided by appellate courts and
10 by trial courts. However, with only few exceptions, Westlaw does not report state
trial court decisions.
1306. For citations, see S. Symeonides, “Issue-by-Issue Analysis and Dépeçage in
Choice of Law : Cause and Effect”, 45 U. Toledo L. Rev. 751, 761 n. 57 (2014)
the term dépeçage are twice as many as the cases that use it, this would
still be a minuscule percentage because American state and federal
courts decide more than 4,000 conflicts cases per year 1307.
There is also the converse phenomenon. Many of the 291 cases that
use the term dépeçage do not engage in it because they do not need to
– either because the case involves only one issue or it involves several
issues to which the court applies the law of the same state. These cases
acknowledge the theoretical possibility of dépeçage and affirm its
legitimacy. Almost half of the appellate cases (47 per cent) fall in this
category 1308.
The remaining cases that use the term dépeçage can be divided
into four categories : (1) cases that engage in dépeçage (32 per cent) ;
(2) cases in which the court concludes that dépeçage would be inappro-
priate under the particular circumstances (8 per cent) ; (3) cases that
are inconclusive on the use of dépeçage (5 per cent) ; and (4) six cases
(all of them from Indiana), which have rejected issue-by-issue analysis
and thus dépeçage (8 per cent) 1309.
In conclusion, issue-by-issue analysis carries little risk, because :
(1) it does not always lead to dépeçage ; (2) when it does, the result is
not necessarily incongruous or otherwise problematic ; and (3) when
it is, a court can easily avoid it. Thus, the rejection of issue-by-issue
analysis – which is more likely than the traditional wholesale analysis
to yield more nuanced and individualized solutions to conflicts cases –
is an unduly drastic reaction to a small and avoidable risk. The better
solution is to guard against the possibility of an inappropriate dépeçage
and to avoid it in the few situations where it may occur.

Dépeçage in Codified PIL Systems
Let us now return to “the civil-law phobia of dépeçage” 1310. Before
discussing the specifics, it is helpful to reiterate that “dépeçage”, as it
is used in this chapter, occurs whenever a court applies the substantive
laws of different states to different issues in the same cause of action.
1307. See S. C. Symeonides, “Choice of Law in the American Courts in 2015 :

Twenty-Ninth Annual Survey”, 64 Am. J. Comp. L. 221, 223 (2016) (showing 4,756
conflicts cases decided in 2015).
1308. For citations, see Symeonides, “Issue-by-Issue Analysis”, at 766 n. 59.
1309. For citations, see ibid. 763-764.
1310. T. W. Dornis, “Local Data”, in J. Basedow et al. (eds.) Encyclopedia of PIL
(2017).
Under this definition, it is immaterial whether this application results

from legislative, judicial, or private action.
(1) A legislative or statutory dépeçage occurs when the statutory
choice-of-law rule or rules, properly applied, lead to the application
of the substantive laws of different states to different aspects of the
same cause of action. It is immaterial whether the application of
these different laws :
(a) Is specifically intended or acknowledged by the legislature ;
(b) It results from the application of a choice-of-law rule or an
exception therefrom (such as the ordre public reservation or the
mandatory rules exception) 1311, or a specific or general escape
(such as those discussed in Chapter VII, supra) 1312 ; or
(c) It results from the application of one or more choice-of-law
rules and, in the latter case, whether those rules cover different
and established “legal categories” (such as contractual capacity,
form, or performance) 1313, as long as those categories are parts
of the same cause of action.
(2) A judicial dépeçage occurs when a court applies the laws of
different states to different aspects of the same cause of action in a
system that does not mandate a dépeçage for the particular cause
of action 1314.
(3) A voluntary or subjective dépeçage occurs when the application of
the laws of different states to different aspects of the same cause
of action results from the legally permissible expression of the
volition of one party (such as a testator or a trust settlor) or more
than one party (such as the parties to a contract).
The civilian principle of “systemic consistency” and “material
harmony”, derived from Savigny, discourages what Americans call
issue-by-issue analysis. As Johan Erauw and Marc Fallon note, “It does
not rhyme with the traditional European approach to allow an ad hoc
1311. In some countries, this is not considered dépeçage. See, e.g., K. Boele-Woelki
and D. Van Iterson, “The Dutch Private International Law Codification : Principles,
Objectives and Opportunities”, 14.3 Electronic J. Comp. L. ( 2010), http ://www.ejcl.
org/143/art143-3.pdf, at 4.4 (stating that, in Dutch literature, “the fact that overriding
mandatory rules may claim application in a case which is otherwise governed by one
particular law is not regarded as dépeçage”).
1312. See supra, Chap. VII.4.
1313. In some countries, a narrower definition prevails. See infra footnotes 1316-
1318.
1314. If the system authorizes such an application, then the resulting dépeçage is
both statutory and judicial.
splitting up of issues.” 1315 However, the key words in the quoted phrase

are the words “ad hoc”. What the Europeans seem to object to is the
“ad hoc” judicial splitting of the issues, not the legislative splitting. In
other words, this hostility is limited to the legislatively unauthorized
issue-by-issue analysis, apparently because of concerns that it may lead
to an undisciplined or inappropriate judicial dépeçage. Contrary to the
definition of this chapter, they do not consider legislative issue-splitting
to be dépeçage. Instead, they call it “fragmentation” 1316, Teilfrage 1317,
or “branching out” 1318.
Nonetheless, legislative issue splitting is at least as likely as a
judicial issue-by-issue analysis to lead to the application of the laws
of different states to different issues, and thus to statutory dépeçage
as defined in this chapter. Moreover, as documented below, legislative
issue splitting is far more frequent than commonly assumed. Indeed, it
occurs even in traditional codifications. As Ehrenzweig noted, dépeçage
is “as old as private as private international law” 1319. For example, in
contracts, these codifications typically provide one choice-of-law rule
1315. J. Erauw and M. Fallon, “Flexibility and Conflicts Justice in the Belgian Code
of Private International Law”, in E. Dirix and Y.-H. Leleu (eds.), The Belgian Reports
at the Congress of Washington of the International Academy of Comparative Law
227, 250 (2011). For similar statements to the same effect from authors from Croatia,
Germany, Japan, Spain, Switzerland, and Turkey, see Symeonides, Codifying Choice
of Law, at 225.
1316. As Boele and Van Iterson state, such a “fragmentation of conflict of laws
rules is a very common phenomenon in Dutch PIL”, but “[b]y contrast, there are few
examples of conflict of laws rules which allow . . . dépeçage”. K. Boele-Woelki and
D. Van Iterson, “The Dutch Private International Law Codification : Principles,
Objectives and Opportunities”, 14.3 Electronic J. Comp. L. 4.4 (2010). According to
the authors,
“In the Dutch legal literature the mere fact that different aspects or issues of a
certain type of cross-border legal relationship fall within different PIL categories
and are therefore governed by different laws is not regarded as dépeçage. . . .
Dépeçage only occurs when the parties designate different laws to be applicable
to different issues falling within a single PIL category . . . or when, in the absence
of such a designation by the parties, a court determines that different rules apply
to different aspects in such a case.” Ibid.
1317. P. Mankowski, “Dépeçage”, in J. Basedow et al. (eds.), Encyclopedia of PIL
(2017). Mankowski defines dépeçage as the splitting of “a formally uniform issue into
two or more partial sub-issues”.
1318. See J. Erauw and M. Fallon, “Flexibility and Conflicts Justice”, at 250
(referring to the Belgian codification’s separate choice-of-law rules on different aspects
of the same relationship as “a branching out into detail, which is a substitute for
dépeçage”).
1319. 1 A. Ehrenzweig, Private International Law, at 119 (1972). See also ibid.,
at 119-120 (“Ever since Bartolus split contract problems into those concerning the
‘solemnitas contractus’ and the ‘litis ordination’, courts have applied rules of different
countries in the same conflicts case to ‘substance’ and ‘procedure’, and to contractual
‘validity’ and ‘performance’ ”).
for contractual capacity (e.g., lex patriae or domicilii), another rule for
formal validity (e.g., lex regit actum), and another rule for substantive
validity. Thus, when a case involves more than one of the above issues
and the pertinent connecting factors are located in different states, these
rules mandate the application of the laws of different states to each of
the issues and consequently lead to dépeçage.
Similarly, for succession cases, traditional codifications typically
provide one choice-of-law rule for testamentary capacity (e.g., lex
patriae or domicilii), another rule for testamentary form (e.g., an
alternative-reference rule such as those described in Chapter VI) 1320,
and another rule for succession to immovables (e.g., lex rei sitae).
Again, when a given case involves more than one of the above issues
and the pertinent connecting factors (or the immovables) are located
in different states, the application of these rules will inevitably lead to
dépeçage.
As discussed below, modern PIL codifications have retained, and
considerably expanded, these instances of legislatively authorized
dépeçage. Indeed, these codifications are much more extensive than
those of the nineteenth and early twentieth centuries, such as the French
Code civil, which comprised only a handful of choice-of-law rules. For
example, some of the new codifications consist of nearly 200 articles 1321.
Although the number of articles is not always a reliable measure of a
codification’s length, it is roughly indicative of its comprehensiveness.
While it is true that the longest of the new codifications also provide
for jurisdiction and judgment recognition, in addition to choice of law,
their choice-of-law rules are both numerous and detailed. One reason
is that the new codifications address new conflicts that did not occupy
the old codifications. But another reason is that the new codifications
have segmented the traditional legal categories into narrower issues
and subjected the resulting segments to different choice-of-law rules,
thus leading to statutory dépeçage 1322. Before examining the various
national codifications, we turn to two influential and recent multinational
codifications, the Rome I and Rome II Regulations.
1320. See supra, Chap. VI.5.C.

1321. For a tabular presentation, see Symeonides, Codifying Choice of Law 25-26.
1322. As Spyros Vrellis notes, the intensification of international commerce and
the increasing complexity of modern multistate activities and transactions have led to
the replacement of choice-of-law rules covering broad categories with narrower rules
covering different transactions in the same category or, in some instances, only certain
issues or aspects of a transaction. S. Vrellis, “Conflit ou coordination”, 433-436.
Section 4. Dépeçage in the Rome Convention

and the Rome Regulations
A. Rome Convention and Rome I Regulation
In contrast to other codifications of its time, the Rome Convention

took an officially hospitable stance on dépeçage by, inter alia,
authorizing in its general Articles 3 and 4 both voluntary dépeçage and
judicial dépeçage.
Article 3 (1) authorized a voluntary dépeçage by allowing contracting
parties to choose the law applicable to the whole “or a part only” of the
contract 1323. Obviously, such a partial choice produces dépeçage if the
parties choose a law other than that which would govern the contract
under the Convention’s other articles. Moreover, the quoted phrase
implicitly allowed the parties to choose one law for some parts of the
contract and another law for other parts of the contract, thus leading
even more directly to dépeçage.
Article 4 (1) provided that, “[t]o the extent that” the parties had not
chosen the applicable law, the contract was to be governed by the law of
the country with which it was most closely connected 1324. The italicized
phrase would lead to dépeçage in two circumstances : first, when the
parties choose a law for only part of the contract, as noted above, and
second, when they choose a law for the whole contract, but their choice
is only partly valid. Even more directly, Article 4 (1) authorized judicial
dépeçage through an escape clause. This escape clause provided that,
although a contract was to be governed by the most closely connected
law, “a severable part” of the contract that had a closer connection with
another country would be governed by the law of that other country 1325.
The Rome I Regulation continues to allow a voluntary dépeçage by
reproducing without change Article 3 (1) of the Rome Convention, and
allowing the contracting parties to choose the applicable law for a part
(or parts) of the contract 1326.
However, Rome I has not reproduced the above-quoted escape of
Article 4 (1) of the Convention, which allowed a severable part of the
contract to be governed by a law other than the law which governs
the rest of the contract. Instead, paragraph 3 of Article 4 of Rome I
1323. Rome Convention, Art. 3 (1).

1324. Ibid., Art. 4 (1) (emphasis added).
1325. Ibid.
1326. See Rome I, Art. 3 (1).
allows an escape only when “the contract” is manifestly more closely

connected with a country other than the country designated by the
previous paragraphs of the article 1327. Similarly, most other provisions
of Rome I speak of the law applicable to “the contract” as a whole.
These changes suggest a partial retreat from the Convention’s pro-
dépeçage stance, although some scholars express doubts on whether
European courts will be as eager to follow suit 1328.
In any event, dépeçage is still possible under several other articles
of Rome I that single out certain issues and assign them to a law that,
depending on the location of the pertinent connecting factors, may be
different from the law governing the rest of the contract. The following
are among those articles :
(1) Form. Paragraphs 1 and 2 of Article 11 provide that a contract is
formally valid if it satisfies the formal requirements of the law that
governs the substance of the contract (lex causae) or the law of
at least one other state. That other state is the state in which all
parties expressed their assent to the contract and, in cross-border
contracts, the state in which at least one party expressed its assent
or had its habitual residence 1329. Under this alternative reference
rule, if a particular contract is formally invalid under the lex causa
but valid under one of the other laws, the other law will govern the
issue of formal validity, and the lex causae will govern the rest of
the contract, thus producing a dépeçage 1330.
(2) Consent. Paragraph 1 of Article 10 provides that the existence
and validity of a contract are both governed by the lex causae.
However, paragraph 2 of the same article allows a party, under
1327. Rome I, Art. 4 (3). This paragraph corresponds partly with paragraph 5 of
Article 4 of the Rome Convention.
1328. See, e.g., J. Erauw and M. Fallon, “Flexibility and Conflicts Justice”, at 251
(expressing doubts on whether the judges in European countries “will be able to resist
the temptation to split up a relationship and apply two different national laws to different
issues under a contract, if the need were to occur”) ; P. Mankowski, “Dépeçage”, at III,
in J. Basedow et al. (eds.), Encyclopedia of PIL (2017) (“dépeçage is still possible”).
1329. See Rome I, Art. 11 (1)-(2). Paragraph 3 provides a similar rule for unilateral
juridical acts. These paragraphs do not apply to consumer contracts.
1330. A dépeçage may also occur in a contract in which the subject matter is “a
right in rem in immovable property or a tenancy of immovable property”. Paragraph 5
of Article 11 requires observance of the formal requirements of the law of the situs
(which according to Article 4 (1) (c) is the lex causae), but only if those requirements
qualify as mandatory rules. If not, the formal validity of the contract may be governed
by the law of one of the other states listed in paragraphs 1 or 2 of Article 11, while
its substantive validity will be governed by the law of the situs-causae, thus again
producing a dépeçage.
certain conditions, to invoke the law of her habitual residence

(which may be in a state other than that of the lex causae) in order to
establish that she did not consent to the contract. Again, a dépeçage
is possible under these circumstances.
(3) Capacity. Similarly, Article 13 provides that, in a contract concluded
between persons who are in the same country, a natural person who
is capable of contracting under the law of that country may, under
certain conditions, invoke his incapacity under the law of another
country. If those conditions are met, that party is held incapable
under the law of that other country, but the “consequences of [this]
nullity” are governed by another law, the lex causae selected under
Article 12 (1) (e) of Rome I 1331.
(4) Performance. Article 12 provides that, although performance in
general is governed by the lex causae, nevertheless, with regard to
the “manner of performance” and the steps to be taken in the event
of defective performance, “regard shall be had” to the law of the
country in which performance takes place. If the court applies that
law rather than simply give it “regard”, a dépeçage will occur.
(5) Insurance contracts. Paragraph 5 of Article 7 provides that, when
an insurance contract that meets certain conditions specified therein
covers risks located in more than one EU member state, “the
contract shall be considered as constituting several contracts each
relating to only one Member State” 1332. This provision may lead
to dépeçage because, under paragraph 3 of the same article, these
insurance contracts are governed by the law of the state where the
risk is situated, unless the parties have validly chosen another law.
(6) “Simple” Mandatory Rules. Article 3 (3) provides that a contract-
ually chosen law will not be applied to the extent it conflicts
with the “simple” mandatory rules of the country where “all other
elements relevant to the situation . . . are located” 1333. Articles 6 (2)
and 8 (1) provide that, in consumer contracts and employment con-
tracts, respectively, a contractually chosen law will not be applied
to the extent it deprives the consumer or employee of the protection
of the “simple” mandatory rules of the otherwise applicable law.
(7) Overriding Mandatory Rules. Article 9 (2) and (3) provides that
the court will not apply the contractually or judicially chosen
law to the extent that it conflicts with the “overriding mandatory
1331. Rome I, Art. 12 (1) (e).

1332. Ibid., Art. 7 (5).
1333. Ibid., Art. 3 (3). See also Art. 3 (4) regarding the mandatory rules of EU law.
provisions” 1334 of the law of the forum, or the law of the place of

performance insofar as the latter provisions render performance of
the contract unlawful.
(8) Ordre Public. Article 21 allows displacement of the applicable law
to the extent that it is manifestly incompatible with the forum’s
ordre public.
B. Rome II
Unlike the Rome Convention (and to a lesser extent the Rome I

Regulation), Rome II takes a negative stance on issue‑by‑issue analysis,
apparently because of the drafters’ desire to avoid the possibility of
dépeçage. Indeed, the EU Council and Commission specifically
rebuffed the Parliament’s attempts to introduce issue‑by-issue analysis.
These attempts are reflected in one of Parliament’s amendments, which
attached the following concluding sentence to what became the general
rule of Article 4 : “In resolving the question of the applicable law, the
court seised shall, where necessary, subject each specific issue of the
dispute to separate analysis.” 1335 The Council and Commission rejected
this amendment. In the end, most of Rome II’s articles were phrased in
broad terms designating the law that would govern the case as a whole,
the “tort/delict”. Article 15 reaffirms this holistic approach by providing
a long list of issues that comprise the scope of the law applicable under
these articles 1336.
Nevertheless, a closer look at some of the other articles reveals that
Rome II does not – because it cannot – entirely avoid an issue-by-issue
analysis and thus the application of different laws in the same case. This
is possible under the following articles of Rome II, in numerical order :
(1) Article 4 and most of Rome II’s operative articles speak of the
law applicable to the “obligation” 1337 arising out of a tort or delict,
rather than to the tort or delict as a whole. A tort may give rise to
multiple obligations, such as when a tortfeasor’s single act injures
1334. Rome I, Art. 9 (2) and (3).

1335. Eur. Parl. Final A6-0211/2005 (27 June 2005) 19/46.
1336. Article 15 of Rome II provides that the scope of the applicable law
encompasses virtually all issues likely to arise in tort litigation, including the basis and
extent of liability, the grounds for exemption from liability, any limitation of liability
and any division of liability, the existence, the nature and the assessment of damage
or the remedy claimed ; injunctive relief, the proper beneficiaries of the right to claim
damages, and its transferability or heritability, respondeat superior, and the extinction
or prescription of the obligation (statutes of limitation).
1337. See, e.g., Rome I, Arts. 4.1, 5.1, 6, 7 and 8.
multiple victims. In such a case, a different law may govern the

different obligations arising from the same act. For example, if one
victim has the same habitual residence as the tortfeasor and another
victim does not, the tortfeasor’s obligation toward the first victim
will be governed by the law of the common habitual residence
under paragraph 2 of Article 4, while the tortfeasor’s obligation
toward the second victim will be governed by the law of the state
of injury under paragraph 1 of Article 4 1338.
(2) Recital 33 purports to authorize the application of the law of the
habitual residence of the victim of a traffic accident in quantifying
the recoverable damage 1339, even when the law of the accident state
governs all the other issues resulting from the accident 1340.
(3) Article 8 (2), which deals with certain intellectual property rights,
can lead to the application of Community law to some issues and
national law to other issues 1341.
(4) Article 14 on choice-of-law agreements can lead to the same
dépeçage possibilities as those discussed above under Rome I 1342.
For example, the parties may choose different laws for different
aspects of the case, or they may choose one law for some issues
and none for others. Even when they choose one law for all issues,
that law will not be applied to the extent it violates the mandatory
rules described in Article 14 (2) of Rome II or the Community rules
described in Article 14 (3).
1338. One could argue that this case consists of two torts, one against each victim,
or two causes of action, one by each victim, and that, technically, the application of two
laws does not amount to dépeçage. Nevertheless, this case presents the same problems
of potential incongruence between the two laws as a technical dépeçage.
1339. This recital states that, “[W]hen quantifying damages for personal injury
in cases in which the accident takes place in a State other than that of the habitual
residence of the victim”, the court should “take into account all the relevant actual
circumstances of the specific victim, including in particular the actual losses and costs
of after‑care and medical attention”. Rome II, recital (33).
1340. In fact, the possibility of dépeçage is the main reason cited by the Council and
Commission for rejecting Parliament’s express rule to that effect. Although the recital
does not enjoy the same status as an express rule in the Regulation’s main body, the
recital either means what it says, in which case the possibility of dépeçage remains, or
it does not mean what it says, in which case Parliament did not get anything from the
purported compromise.
1341. Article 27 of Rome II can also lead to the same phenomenon by recognizing
that a case may be governed partly by the law designated by Rome II and partly by the
law designated by other choice-of-law rules contained in other community instruments.
1342. Article 14 allows choice-of-law agreements entered either before or after the
occurrence of the tort, but subject to different conditions. It applies to all non-contractual
claims other than those arising from unfair competition, restrictions to competition, and
infringement of intellectual property rights. See Rome II, Arts. 6 (4)) and 8 (3).
(5) Articles 16 and 26 allow displacement of the applicable law to the

extent necessary to satisfy the mandatory rules of the forum state,
or to the extent that law is incompatible with the forum’s ordre
public.
(6) Article 17 allows the court to “take account” of the rules of “safety
and conduct” of the state of conduct when the remainder of the case
is governed by the law of another state 1343. If the court chooses to
apply the rules of conduct and safety (instead of merely “taking
account” of them), a dépeçage will occur.
(7) Article 18 allows the tort victim to sue the tortfeasor’s insurer
directly under the law governing the insurance contract, even if
another law governs the tort 1344.
(8) Articles 19 and 20 provide that the rights of subrogation,
indemnification, and contribution between the parties mentioned
in these articles may be governed by a law other than the law
governing the victim’s claims against these parties 1345.
The above list is much longer than the opponents of dépeçage would
ordinarily tolerate. This is not a criticism. After all, more often than not,
dépeçage is not inappropriate and, when it is, there are tools for avoiding
it. Unfortunately, Rome II provides no such tools because, as discussed
in Chapter VII, its all-important general escape of Article 4 (3) is also
phrased in wholesale, geographic terms that, inter alia, preclude an
issue-by-issue deployment 1346. Thus, Rome II ends up with the worst of
both worlds : (a) no issue-by-issue analysis with its attendant benefits ;
and (b) no tools for avoiding an inappropriate dépeçage.
Section 5. Dépeçage in Other Modern Codifications

The fact that the Rome Convention has been emulated in many non-
EU countries, coupled with the fact that the Rome I Regulation is in
force in 27 of the 28 EU countries 1347 demonstrates that the receptive
1343. Rome II, Art. 17.

1344. One could argue that the victim’s claims against the tortfeasor, on the one
hand, and against the tortfeasor’s insurer, on the other hand, constitute two causes of
action and thus the application to them of different laws does not amount to dépeçage.
This argument is questionable, but even if it is valid, this case presents the same
problems of potential incongruence between the two laws as a technical dépeçage.
1345. Again, one could argue the claims of some of these parties involve different
causes of action. Even if this is true, the application of different laws presents the same
problems of potential incongruence between the two laws as a technical dépeçage.
1346. See supra, Chap. VII.4.C.
1347. The only exception is Denmark, which instead applies the Rome Convention.
stance these two instruments take toward dépeçage has been accepted
in a significant number of countries.
The fact that Rome II, which is also in force in 27 EU countries,
is replete with dépeçage possibilities despite the drafters’ official
disapproval of issue-by-issue analysis also confirms the inevitability
of dépeçage.
A careful examination of other choice-of-law codifications would
produce a very extensive list of provisions that could lead to dépeçage.
The text below provides a merely illustrative list.
A. Statutory and voluntary dépeçage
1. Contracts
(a) Statutory dépeçage
In addition to the 27 EU countries that are bound by Rome I,

several other countries have emulated the Rome Convention in their
codifications, in whole or in part. These codifications present similar
possibilities for dépeçage. The same is true of many other codifications
outside the European Union, at least with regard to issues of capacity,
form, and all other contractual issues. As documented in another
publication, at least 53 recent PIL codifications provide different
choice-of-law rules for these issues 1348. Thus, these codifications accept
the possibility that, in a given case, these rules may lead to the laws of
different states. Of course, and despite contrary protestations, this is
none other than the very dépeçage that the prevailing academic doctrine
seems to despise.
In contrast to this hostility, the codifications of Louisiana, Oregon,
and Puerto Rico officially mandate an issue-by-issue analysis and thus
they are entirely content with the possibility of dépeçage. In addition
to providing separate choice-of-law rules for issues of form 1349,
capacity 1350, and consent 1351, the three codifications also require that
1348. For a tabular presentation and citations, see Symeonides, Codifying Choice
of Law 232-233.
1349. See La. codif., Art. 3538 ; Or. Rev. Stat., § 15.325 ; Puerto Rico draft codif.,
Art. 32.
1350. See La. codif., Art. 3539 ; Or. Rev. Stat., § 15.330 ; Puerto Rico draft codif.,
Art. 33.
1351. See Or. Rev. Stat., § 15.335 ; Puerto Rico draft codif., Art. 34.
the judicial search for the law applicable to any other issue must focus
on “that issue” 1352.
The Mexico City Convention does not use the word “issue” but it,
too, is issue-oriented. Besides also providing separate choice-of-law
rules for form, capacity, and consent 1353, the Convention allows the
court to apply different laws to “separable” parts of a contract 1354.
(b) Voluntary dépeçage
Like the Rome Convention and the Rome I Regulation 1355, many

recent codifications allow contracting parties to choose a law for only
part of the contract, or to choose different laws for different parts of the
contract. Obviously, if the parties either make a partial choice of law or
choose multiple laws, their choice will produce a dépeçage. In addition
to the 27 EU countries that are bound by Rome I, such partial or multiple
choice is expressly authorized by the Mexico City Convention, the
Hague Sales Convention, the Hague Contracts Principles 1356, and more
than 20 codifications outside the European Union 1357.
2. Torts
The possibilities of dépeçage in tort conflicts under the Rome II

Regulation, which binds 27 EU countries, were discussed earlier 1358.
1352. See La. codif., Art. 3537 (“the law of the state whose policies would be most
seriously impaired if its law were not applied to that issue”) ; Or. Rev. Stat., § 15.360
(“the law . . . that is the most appropriate for a resolution of that issue”) ; Puerto Rico
draft codif., Art. 30 (“the law of the state which, with regard to the issue in question,
has the most significant connection”).
1353. See Inter-American Convention on Law Applicable to International Contracts,
Arts. 13 and 12.
1354. See ibid., Art. 9 (3).
1355. See Rome Convention, Art. 3 (1) ; Rome I, Art. 3 (1).
1356. Inter-American Convention on Law Applicable to International Contracts,
Art. 7 ; Hague Convention of 22 December 1986 on the Law Applicable to Contracts
for the International Sale of Goods, Art. 7 (1) ; Hague Principles on the Choice of Law
in International Contracts, Art. 2.2.
1357. See Albanian codif., Art. 45.1 ; Argentine codif., Art. 2651 ; Armenian codif.,
Art. 1284 (2) ; Azerbaijan codif., Art. 24.1 ; Belarus codif., Art. 1124 (4) ; Dominican
Republic codif., Art. 60 ; FYROM codif., Art. 15 (3) ; Kazakhstan codif., Art. 112.3 ;
South Korean codif., Art. 25 (2) ; Kyrgyzstan codif., Art. 1198 (2) ; La. codif.,
Art. 3540, cmt. (e) ; Moldova codif., Art. 1611 ; Montenegrin codif., Art. 38 ; Or. Rev.
Stat., § 15.350 (1) ; Puerto Rico Draft codif., Art. 28 ; Quebec codif., Art. 3111 (3) ;
Russian codif., Art. 1210 (4) ; Serbian codif., Art. 136.3 ; Tajikistan codif., Art. 1218.3 ;
Turkish codif., Art. 24 (2) ; Ukrainian codif., Art. 5.3 ; Uruguayan Draft, Art. 48.3 ;
Uzbekistan codif., Art. 1189.2.
1358. See supra, Chap. VIII.4.2.
Similar possibilities exist in certain national codifications and inter-

national conventions. One possibility involves the “conduct and safety”
rules of the state of conduct. Many other codifications (five within the
European Union 1359 and ten outside the European Union 1360) and two
Hague Conventions 1361 have a provision similar to Article 17 of Rome II.
They provide that the court shall “take account” of the conduct and
safety rules of the conduct state when the tort is governed by the law of
another state, such as the state of injury or the parties’ common home
state. Some of these codifications use mandatory language requiring the
application of the conduct rules, while others use more flexible language
instructing the court to “consider” or “take account of” (but perhaps not
necessarily apply) those rules. If the court applies the conduct rules of
the conduct state, side-by-side with the other rules of another state, then
a judicial dépeçage occurs.
Another possibility of dépeçage in codifications that follow the
Rome II model involves pre-dispute choice-of-law agreements. Two
recent codifications (those of Albania and Serbia) have adopted an identi-
cal article to Article 14 of Rome II, which allows such agreements 1362. As
noted earlier, that article creates the possibility of a voluntary dépeçage
because nothing in the article prohibits a partial choice of law or the
choice of multiple laws, and, even if the parties choose a single law for
the entire cause of action, the possibility of a judicial dépeçage remains.
Outside the sphere of Rome II, some codifications mandate a
statutory dépeçage between the issues of liability and damages. These
codifications provide that the victim of a tort governed by foreign law
may not recover more damages than those allowed by the law of the
forum. Six codifications (Estonia, Germany, Japan, North Korea, and
South Korea) do so for all torts 1363, and two (Switzerland, and Turkey)
do so only for certain torts 1364.
1359. See Belgian codif., Art. 102 ; Bulgarian codif., Art. 115 ; Hungarian codif.,
Art. 34 (1) ; Dutch Torts Act of 2001, Art. 6 ; Portuguese codif., Art. 45 (3).
1360. See the codifications of Albania (Art. 59), Angola (Art. 45.3), Cape Verde
(Art. 45.3), East Timor (Art. 44.3), Guinea-Bissau (Art. 45.3), Macau (Art. 44.3),
Mozambique (Art. 45.3), Serbia (draft Art. 176), Switzerland (Art. 142.2), and Tunisia
(Art. 75).
1361. See Hague Convention on the Law Applicable to Traffic Accidents of 1971,
Art. 7 ; Hague Convention on the Law Applicable to Products Liability of 1972, Art. 9.
1362. See Albanian codif., Art. 57 ; Serbian draft codif., Art. 158.
1363. See Estonian codif., Art. 52 ; German codif., Art. 40 (3) ; Japanese codif.,
Art. 22 (2) ; North Korean codif., Art. 31 ; South Korean codif., Art. 32 (4).
1364. See Swiss codif., Art. 135 (2) (“When claims based on a defect in, or a
defective description of, a product are governed by foreign law, no damages other
than those that would be awarded under Swiss law for such injury may be awarded
The Louisiana codification and the Puerto Rico Draft have different
choice-of-law rules for issues of “conduct regulation” and issues of
“loss distribution”, respectively 1365, but also provide tools, such as an
escape clause 1366, that can be used to avoid an inappropriate dépeçage.
The tort choice-of-law statutes of Oregon and the United Kingdom can
also lead to dépeçage because they are built on issue-by-issue analysis,
but they too provide similar avoidance tools 1367.
3. Marriage
In the law of marriage, there is a possibility of statutory dépeçage
in all systems that apply the personal law of each spouse to determine
whether that spouse meets the requirements for a valid marriage. For
example, Article 48 of the Polish codification provides that “[t]he
ability to conclude a marriage is determined towards each of the parties
by the law of his or her nationality as of the day when the marriage is
concluded” 1368. At least 30 other codifications have similar rules 1369.
Like many other codifications, the Polish codification contains two
additional choice-of-law rules applicable to the formal validity and
personal effects of marriage, respectively. Article 49 provides that the
law of the state in which the marriage is concluded governs its formal
validity 1370. Article 51 provides that the personal relations between the
spouses are governed by the law of their common nationality, domicile,
or habitual residence, if any, and, in the absence of such commonality,
by the law of the state with which both spouses are “otherwise most
closely connected” 1371.
in Switzerland”), Art. 137 (2) (same for obstructing competition) ; Turkish codif.,
Art. 38 (2) (same for obstruction to competition).
1365. See La. codif., Arts. 3543-3544 ; Puerto Rico Draft, Arts. 40-41.
1366. See La. codif., Art. 3547 ; Puerto Rico Draft, Art. 39 (3).
1367. See Or. Rev. Stat., §§ 15.400-15.455 ; Private International Law (Miscellaneous
Provisions) Act of 8 November 1995 (c. 42).
1368. Polish codif., Art. 48.
1369. See the codifications of Albania (Art. 21) ; Algeria (Art. 11) ; Angola (Art. 49) ;
Austria (Art. 17.1.) ; Belgium (Art. 46) ; Bulgaria (Art. 79) ; Burkina Faso (Art. 1022) ;
Cape Verde (Art. 49) ; Czech Republic (Art. 48.1) ; East Timor (Art. 48) ; FYROM
(Art. 38.1) ; Georgia (Art. 44.1) ; Germany (Art. 13) ; Italy (Art. 27) ; Guinea-Bissau
(Art. 49) ; Japan (Art. 24) ; Jordan (Art. 13) ; North Korea (Art. 35) ; South Korea
(Art. 36.1) ; Liechtenstein (Art. 18) ; Macau (Art. 48) ; Mozambique (Art. 48) ; Peru
(Art. 2075) ; Portugal (Art. 49) ; Romania (Art. 2.586) ; Serbia (Art. 61) ; Slovakia
(Art. 19) ; Slovenia (Art. 24) ; Taiwan (Arts. 45-46) ; Turkey (Art. 13) ; UAE (Art. 12) ;
Venezuela (Art. 21).
1370. Polish codif., Art. 49.1.
1371. Ibid., Art. 51.
Real life tends to be less complicated than the hypothetical scenarios

used in the classroom. Nevertheless, it is not inconceivable that in a
given situation the three Polish articles can lead to the application of
three (or even four) different laws to the issues to capacity, formal
validity, and personal relations, respectively. If the three laws are
incongruous, the resulting dépeçage would be inappropriate, but the
codification does not provide any vehicle for avoiding it. The dépeçage
possibilities are even higher if the case also involves a dispute about the
spouses’ property relations for which the Polish codification, along with
many other codifications, allows the spouses to choose the applicable
law 1372. This possibility is discussed in the next subsection.
4. Matrimonial property regimes
A matrimonial property regime can be contractual, or legal (i.e., by

operation of law when the parties have not agreed otherwise), or partly
contractual and partly legal. In all three types of regimes, a statutory or
voluntary dépeçage is quite common, and in some instances inevitable.
The following are some examples.
(1) Certain systems differentiate between movable and immovable
assets and subject them to different laws 1373, or allow the parties
to subject immovables to the law of the situs when a different law
governs the regime 1374.
(2) Regardless of the type of the regime, the rights of third parties,
such as creditors, are subject to a different choice-of-law rule,
which may lead to the application of a different law than the law
governing the regime as between the spouses 1375.
1372. See Polish codif., Arts. 52-53.

1373. For example, the Turkish codif., Art. 15 (2), and Taiwanese codif., Art. 48.3,
allow a choice-of-law by the parties but mandatorily exempt from it immovables
situated in a state other than the chosen state. See also Family Law (Scotland) Act 2006,
asp 2, § 39. In the United States, differentiation between movables and immovables is
the norm. See, e.g., Uniform Disposition of Community Rights at Death Act of 1971 ;
Calif. Civ. Code, §§ 5110, 4800, 4800.5, 4803 ; Calif. Prob. Code, §§ 28, 100-102, 120.
See also La. codif., Arts. 3523-3527.
1374. See, e.g., Hague Convention on the Law Applicable to Matrimonial Property
Regimes, Arts. 3 (4), 6 (4) ; Albanian codif., Art. 24.2.c ; Chinese codif., Art. 26 ;
FYROM codif., Art. 43 (2) 3. German codif., Art. 15 (2) 3 ; South Korean codif.,
Art. 38 (2) 3 ; Montenegrin codif., Art. 82.
1375. See, e.g., Hague Convention on the Law Applicable to Matrimonial Property
Regimes, Art. 9 ; Belgian codif., Art. 54 ; Bulgarian codif., Art. 81 ; Estonian codif.,
Art. 59 ; German codif., Art. 16 ; Finnish Law 1226/2001, § 135 ; Italian codif.,
Art. 30.3 ; Japanese codif., Art. 26 (3) ; South Korean codif., Art. 38 (3)-(4) ; Lithuanian
(3) The formal validity of the agreement establishing or modifying a

regime is often subject to a different choice-of-law rule, which may
lead to the application of a different law than that which governs
the regime’s substantive validity 1376.
(4) Most systems allow spouses to agree on the law governing the
regime, but this choice may be held ineffective to the extent it
violates the public policy limits of the otherwise applicable law 1377.
(5) Some systems allow spouses : (a) to choose a governing law
for only some of their assets ; (b) to subject certain assets (e.g.,
immovables) to a different law than the law governing the rest of
the regime ; (c) to otherwise (e.g., in terms of time) choose more
than one law ; or (d) to change the governing law prospectively or
retrospectively 1378. For example, the Serbian codification provides
that “[u]nless the spouses agree otherwise, a change of the law
applicable to the matrimonial property regime made during the
marriage shall, be effective only in the future” 1379. Conversely,
the Swiss codification provides that a choice of law made after the
celebration of the marriage has retroactive effect to the date of the
marriage, but only “[i]n the absence of a contrary agreement” 1380.
The Swiss codification also provides that, when the spouses change
their domicile from one state to another, the law of the new domicile
applies and has retroactive effect to the date of the marriage, but the
spouses may “agree in writing to exclude this retroactivity” 1381.
(6) The Belgian codification seeks to prohibit a contractual dépeçage
by providing that the spouses’ choice of law must cover all of their
assets 1382. However, if the spouses agree to change the applicable
codif., Art. 1.28 (3)-(4) ; Montenegrin codif., Art. 83 ; Portuguese codif., Art. 54.2 ;
Puerto Rico draft codif., Art. 25 ; Serbian draft codif., Art. 75.2 ; Swiss codif., Art. 57 ;
Taiwanese codif., Art. 49 ; Turkish codif., Art. 15 (2).
1376. See, e.g., Hague Convention on the Law Applicable to Matrimonial Regimes,
Arts. 12‑13 ; Belgian codif., Art. 52 ; Estonian codif., Art. 58 (2) ; German codif.,
Arts. 15 (3) and 14 (4) ; Finnish Law 1226/2001, § 130 (3) ; Italian codif., Art. 30.2 ;
Lithuanian codif., Art. 1.28 (2) ; Romanian codif., Art. 2.591 (2) ; Serbian draft codif.,
Art. 74.1 ; Swiss codif., Art. 57.
1377. See, e.g., Bulgarian codif., Art. 79 (4) ; Finnish Law 1226/2001, §§ 134,
139 (2).
1378. See, e.g., Hague Convention on the Law Applicable to Matrimonial Regimes,
Arts. 7‑8 ; Chinese codif., Art. 26 ; German codif., Art. 15 (2) 3 ; Finnish Law 1226/2001,
§ 137 (2) ; FYROM Codification, Art. 43 (2) 3 ; South Korean codif., Art. 38 (2) 3 ;
Puerto Rico draft codif., Art. 23 ; Serbian draft codif., Art. 73 ; Uruguayan draft codif.,
Art. 25.7.
1379. Serbian draft codif., Art. 73.3.
1380. Swiss codif., Art. 53.2.
1381. Ibid., Art. 55.
1382. Belgian codif., Art. 50, § 2.
law, they may do so only prospectively, unless they agree to change

it retroactively 1383. Finally, the Hague Convention on the Law
Applicable to Matrimonial Property Regimes allows spouses, either
before marriage (Art. 3) or during marriage (Art. 6), to choose the
law governing the regime. Although the chosen law must govern
“the whole of their property” 1384, the spouses may exempt from that
chosen law (or from the law that would be applicable in the absence
of choice) all or some of their (present or future) immovables, and
to subject them to the law or laws of the respective situses 1385.
5. Successions
As noted earlier, in testamentary succession conflicts, the possibility

of dépeçage between form, capacity, and other issues was present
even in traditional choice-of-law codifications. The same possibilities
exist in modern codifications. However, what is new is the possibility
of voluntary dépeçage. Voluntary dépeçage is now possible because
of the relatively new idea of allowing a testator to choose, within
certain geographical and substantive limits, the law that will govern
his or her succession upon death. Rules to this effect exist in : (a) the
Hague Convention on the Law Applicable to Estates, the Successions
Regulation in the European Union, the Uniform Probate Code and other
statutes in the United States 1386, and (b) more than 20 codifications in
other countries 1387.
1383. See Belgian codif., Art. 50, § 3. (“The change of applicable law resulting from
a choice by the spouses will only have effect for the future. The spouses may depart
from this rule by agreement without adversely affecting third parties’ rights”). See also
Finnish Law 1226/2001, § 129.
1384. Hague Convention on the Law Applicable to Matrimonial Property Regimes,
Arts. 3 (3), 6 (3).
1385. Ibid., Arts. 3 (4), 6 (4).
1386. See Hague Convention on the Law Applicable to Estates, Art. 5 ; EU
Successions Regulation, Art. 22 ; Uniform Probate Code, $ 2-602 ; New York Estate
Powers and Trusts Law, § 3-5.1 (h).
1387. See Albanian codif., Art. 33.3 ; Azerbaijan codif., Art. 29 ; Armenian codif.,
Art. 1292 ; Belarus codif., Arts. 1133, 1135 ; Belgian codif., Art. 79 (testaments) and
124 (trusts) ; Bulgarian codif., Art. 89 ; Burkina Faso codif., Art. 1044 ; Estonian codif.,
Art. 25 ; Italian codif., Art. 46 (successions) and Art. 56 (donations) ; Kazakhstan codif.,
Art. 1121 ; South Korean codif., Art. 49 ; Kyrgyzstan codif., Art. 1206 ; Liechtenstein
codif., Art. 29.3 ; Moldovan codif., Art. 1624 ; Montenegrin codif., Art. 72 ; Dutch codif.,
Art. 145 ; Polish codif., Art. 64.1 ; Puerto Rico draft codif., Art. 48 ; Quebec codif.,
Arts. 3098-3099 ; Romanian codif., Art. 2.633 ; Serbian codif., Art. 104 ; Swiss codif.,
Arts. 90 (2), 91 (2), 87 (2), 95 (2)-(3) ; Tajikistan codif., Arts. 1231-1232 ; Ukrainian
codif., Art. 70 ; Uzbekistan codif., Art. 1197.
In addition to respecting the testator’s volition, these rules can help

accomplish an important goal of the substantive law of successions :
treating the estate as a single unit under a single law regardless of the
location of the assets. However, this goal can only be accomplished if
the particular rule prohibits a partial choice of law or the choice of more
than one law. In fact, very few rules contain such an express prohibition,
and some specifically allow partial or multiple choices.
For example, the Hague Convention provides that the testator’s
choice of law “is to be construed as governing succession as a whole”,
but only “in the absence of a contrary provision by the deceased” 1388.
In fact, another article expressly allows the testator to choose the law
of “one or more States to govern the succession to particular assets in
his estate” 1389. The Serbian codification provides that “[w]ith regard
to the succession as a whole”, a testator may choose the law of his
nationality or habitual residence, but “[w]ith regard to the succession
of his immovable estate”, a testator may choose the law of the situs 1390.
Even if some of the aforementioned provisions are interpreted as
prohibiting a partial or multiple testamentary choice of law, or even
when a testator chooses a single law, there is no guarantee that a single
law will ultimately govern the estate. If there are other disputed issues
(such as issues of form or capacity) that are controlled by a different
law, or if the chosen law violates certain provisions of the otherwise
applicable law (such as those guaranteeing a compulsory share for the
surviving spouse or children) then a dépeçage will be inevitable.
6. Trusts
The Hague Trusts Convention, which is in force in 11 countries 1391,
expressly authorizes dépeçage. Chapter II of the Convention, which
deals with the applicable law, provides that a trust is governed by the
law chosen by the settlor and, in the absence of such a choice, by the
law with which the trust is “most closely connected” 1392. Article 9
provides that “[i]n applying this Chapter, a severable aspect of the trust,
particularly matters of administration, may be governed by a different
1388. Hague Estates Convention, Art. 5 (4).

1389. Ibid., Art. 6.
1390. Serbian draft codif., Art. 104.
1391. See Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on
Their Recognition (in force in : Australia, Canada, Italy, Liechtenstein, Luxembourg,
Malta, Monaco, Netherlands, San Marino, Switzerland, and the United Kingdom).
1392. Hague Trusts Convention, Art. 7.
law” 1393. The Czech and Quebec codifications have adopted a similar

scheme, including the last-quoted provision, which authorizes a judicial
and perhaps a voluntary dépeçage 1394.
B. Judicial dépeçage
A judicial dépeçage may occur in other codifications, such as those of

Louisiana and Oregon, which employ “approaches” and issue-oriented
rules. However, it can also occur under other codifications, inter alia :
(1) through the handling of the incidental question ; (2) by employing
the ordre public reservation ; (3) in applying the mandatory rules of
the law of the forum or of a state other than the state of the otherwise
applicable law ; or (4) by employing an escape clause.
1. Preliminary or incidental question
As Ehrenzweig noted a long time ago, “[T]he very theory of the

‘preliminary question’ presupposes th[e] technique [of dépeçage]” 1395.
The few PIL codifications that address this question confirm this pro-
position.
For example, the Dutch codification provides :
“Where the question of whether legal consequences ensue from
a fact arises as a preliminary question in connection with another
question that is subject to foreign law, the preliminary question
shall be regarded as an autonomous question.” 1396
The clear implication of this provision is that the incidental question
will be governed by the law designated by the choice-of-law rule
applicable to this “autonomous” question, and that may or may not be
the same law as that which governs the principal question.
The Inter-American Convention on General PIL Rules and the
Venezuelan codification directly confirm this inference. They provide :
“Previous, preliminary or incidental issues that may arise from a
principal issue need not necessarily be resolved in accordance with the
1393. Hague Trusts Convention, Art. 9. Article 10 provides that the law applicable
to the validity of the trust determines whether that law or the law governing a severable
aspect of the trust may be replaced by another law.
1394. See Czech codif., Art. 73 ; Quebec codif., Art. 3107.
law that governs the principal issue.” 1397 Indeed, they “need not” be
governed by the same law ; and, when they are not, the result is, of
course, dépeçage.
In other systems, there is no hard and fast rule on what law governs
the incidental question. The available options are to apply : (a) the law
governing the principal issue (lex causae) ; (b) the law designated by
the choice-of-law rules of the lex causae ; (c) the law designated by the
choice-of-law rules of the forum state ; or (d) the law of the forum qua
forum. A dépeçage is possible under the last three options.
2. Ordre public

In virtually all choice-of-law systems, a court may refuse to apply
the otherwise applicable foreign law to the extent that its application
is manifestly incompatible with the public policy of the forum state.
For example, Rome II provides that the application of “a provision”
of the law of any country specified by Rome II may be refused if such
application is manifestly incompatible with the public policy of the
forum 1398.
In many cases, the objectionable provision of the foreign law must be
replaced by another provision from either the same law (if possible) 1399
or, more likely, from the law of the forum. Several codifications expressly
authorize the application of the lex fori without qualification in place
of the discarded provision of foreign law 1400, while other codifications
authorize such application “if necessary” 1401. For example, the Serbian
codification provides that “[w]here a provision of a foreign law cannot
1397. Inter-American Convention on General Rules of Private International Law,

Art. 8. The Venezuelan article is virtually identical. See Venezuelan codif., Art. 6. The
Uruguayan draft codification (Art. 10) provides directly that preliminary or incidental
questions that arise in connection with the principal issue are governed by the law
applicable to them.
1398. Rome II, Art. 26.
1399. See, e.g., Bulgarian codif., Art. 45 (providing that “another appropriate
provision of the same foreign law shall be applied” and “[i]n the absence of such a
provision, a provision of Bulgarian law shall apply, if necessary . . .”) ; Dominican
Republic codif., Art 86 ; Macau codif., Art. 20 ; Portuguese codif., Art. 22.2.
1400. See, e.g., the codifications of : Albania (Art. 7) ; Congo (Brazzaville)
(Art. 829) ; Kazakhstan (Art. 1090.1) ; Kyrgyzstan (Art. 1173) ; Moldova (Art. 1583) ;
Qatar (Art. 38) ; Senegal (Art. 851) ; Tajikistan codif., Art. 1197.1 ; Togo (Art. 730) ;
Tunisia (Art. 36.5) ; Ukraine (Art. 12.1) ; and Uzbekistan (Art. 1164.1).
1401. See Austrian codif., Art. 6 (providing that “the corresponding provision of
Austrian law shall be applied, if necessary”) ; Estonian codif., Art. 7 (“In such a case,
Estonian law applies”) ; Russian codif., Art. 1193 (“In such a case, if necessary, the
respective norm of Russian law shall be applied”) ; Turkish codif., Art. 5. (“where
deemed necessary, Turkish law shall apply”).
be applied due to the violation of public policy, a provision of the law

of the Republic of Serbia shall apply instead of it, if necessary” 1402.
Needless to say, a dépeçage occurs whenever a court applies a foreign
law for one part of a case and a provision of forum law for another part
of the case for which the foreign law is repugnant to the forum’s public
policy.
3. Mandatory rules
As Chapter V documents, (1) more than 40 codifications and con-

ventions contain general provisions that expressly require the appli-
cation of the mandatory rules of the forum state ; and (2) nearly 30 codi-
fications and conventions authorize the application of the mandatory
rules of a third state (other than the forum state or the state of the lex
causae) with which the case has a “close connection” in lieu of the
provisions of the otherwise applicable foreign law 1403.
Moreover, the Rome I Regulation and several codifications in
countries outside the European Union provide that a choice-of-law
clause in a consumer contract or an employment contract may not
deprive the consumer or employee, respectively, of the protection
afforded by the mandatory rules of the country whose law would
govern the contract in the absence of such a clause 1404. Rome I and the
same codifications also provide that a contractually chosen law may not
displace the mandatory rules of the country in which “all other elements
relevant to the situation . . . are located” 1405.
In all instances where a court applies the mandatory rules of one
state along with the non-displaced provisions of another state (the state
of the otherwise applicable law), the court engages in dépeçage.
4. Escape clauses
As the discussion in Chapter VII documents, the use of escape

clauses such as those based on the “closer connection” has become quite
common in modern codifications 1406. For purposes of this topic, escape
clauses can be divided into two categories. The first category consists
1402. Serbian draft codif., Art. 39 (3) (emphasis added).

1403. See supra, Chap. V.4.B.
1404. See Symeonides, Codifying Choice of Law, 128-129, 154-155, 166.
1405. See Rome I, Art. 3 (3).
1406. See supra, Chap. VII.4.
of escape clauses that are directed at broad legal categories, such as

contract or tort. The escape clauses in the majority of codifications,
including those of Rome I and Rome II, belong to this category 1407. The
second category consists of escape clauses such as those found in the
English tort statute and the Louisiana and Oregon codifications, which
are directed toward particular issues within a contract or tort 1408.
The escape clauses of the second category can lead to dépeçage if
the court employs them to a particular issue rather than to the entire
contract or tort. By contrast, the escape clauses of the first category
are not supposed to lead to dépeçage because they may be employed
only when the entire contract or tort is more closely connected with a
state other than that of the otherwise applicable law. However, whether
judges will in fact employ these clauses in such a wholesale fashion
remains an open question.
This chapter is not intended to, and does not, argue that dépeçage
is either a good or a bad thing. Rather, the chapter documents that
dépeçage is (1) potentially as frequent in codified as in uncodified
PIL systems ; and (2) much more frequent than commonly assumed.
Although most codifications (like Rome II) do not allow a judicial
issue-by-issue analysis, they are replete with countless instances of
legislative issue splitting, which is at least as likely to lead to dépeçage
as a judicial issue-by-issue analysis.
To be sure, one can downplay this phenomenon by defining
dépeçage so narrowly as to exclude all instances of legislative issue
splitting and all instances in which a judicial dépeçage results from
statutory escapes or exceptions 1409. How one defines dépeçage may
be a matter of semantics, but even the narrowest of definitions would
not reinstate the systemic coherence and material harmony to which
Savigny aspired. A pragmatic assessment of contemporary PIL cannot
avoid the conclusion that the principle of coherence and harmony is
honoured almost as much in the breach as in the observance.
This situation would not be problematic if PIL codifications provided
the necessary tools to avoid a statutory dépeçage in those cases in which
1407. See supra, Chap. VII.4.A.,B.1.

1408. See supra, Chap. VII.4.C.2.
1409. See supra, footnotes 1316-1319.
it may be inappropriate. Unfortunately, only a handful of codifications

do so. Incidentally, all but one of them are from the Americas.
The codifications of Louisiana, Oregon, and Puerto Rico consist
of flexible rules and escapes that give courts the ability to avoid an
inappropriate dépeçage 1410. The Louisiana codification contains at least
one provision, Article 3529, which is specifically designed to avoid an
inappropriate statutory dépeçage. This provision is found in the title
on successions, which consists of relatively fixed rules. Article 3529
contains two separate choice-of-law rules for issues of testamentary
capacity and vices of consent, respectively. It provides that a person is
capable of making a testament if, at the time of making the testament,
he possesses that capacity under the law of the state in which he is
domiciled either at that time or at the time of death. Article 3529 also
provides that, if the testator possesses capacity under the law of only
one of the above states, then “his will contained in the testament shall
be held free of vices only if it would be so held under the law of that
state” 1411. The quoted provision is intended to avoid a dépeçage on the
issues of testamentary capacity and consent because, in most systems,
the rules on these two issues are closely interrelated such that applying
one set of rules without the other would disturb the equilibrium accom-
plished by them and would distort the policies of both involved states.
The Inter-American Convention on General PIL Rules provides a more
general admonition for avoiding an inappropriate dépeçage. Article 9
of the Convention provides that : (1) “The different laws that may be
applicable to various aspects of one and the same juridical relationship
shall be applied harmoniously in order to attain the purposes pursued
by each of such laws” ; and that (2) “Any difficulties that may be caused
by their simultaneous application shall be resolved in the light of the
requirements of justice in each specific case.” 1412 The codifications of
Argentina, the Dominican Republic, Uruguay, and Venezuela contain
similar provisions 1413, as does the codification of Burkina Faso 1414.
1410. For detailed discussion, see Symeonides, “Mixed Jurisdiction”, 472-476.

1411. La. codif., Art. 3529 (emphasis added). For an in depth discussion of the
rationale and operation of this article, see Symeonides, “The ‘Dismal Swamp’ ”, 1057-
1060.
1412. Inter-American Convention on General Rules of Private International Law,
Art. 9.
1413. See Argentinian codif., Art. 2595 ; Dominican Republic codif., Art. 84 ;
Uruguay draft codif., Art. 11 ; Venezuelan codif., Art. 7.
1414. See Burkina Faso codif., Art. 1009 (“Lorsqu’un rapport juridique est, dans
ses différents aspects, régit par des droits différents, ceux-ci doivent être appliqués
d’une manière harmonieuse en vue de la réalisation des buts poursuivis par chacun de
ces droits”).
Unfortunately, most other codifications do not provide preventive or

corrective tools against an inappropriate statutory dépeçage. For this
reason, they end up with the worst of both worlds :
(1) Out of concern that issue-by-issue analysis may lead to an
inappropriate judicial dépeçage in some cases, these codifications
avoid this analysis and thus deprive themselves of the benefits such
an analysis provides in terms of flexibility and rationality.
(2) Yet these codifications produce countless cases of statutory
dépeçage, and they do not provide the tools to avoid it in those
cases in which it is inappropriate.
CHAPTER IX
FROM IDEALISM TO PRAGMATISM AND ECLECTICISM
Section 1. The Classical PIL
In his monumental treatise, published in 1849, Friedrich Carl von

Savigny articulated a vision of PIL that demarcated and steered the way
in which the civil law world understood and thought about this subject
ever since. Savigny’s vision became the classical PIL model. More than
a century and a half later, European authors acknowledge that European
PIL doctrine “is still firmly committed to the ‘savignian’ values” 1415
and, to a great extent, remains “under the spell of Savigny” 1416.
For the reader’s convenience, let us recall the basic features of the
Savignian classical model.
(1) Nature : PIL is private and apolitical national law with internationa-
list aspirations.
(2) Goals : PIL aims at :
(a) international uniformity of result regardless of forum ;
(b) conflicts justice rather than material justice ; and
(c) legal certainty and predictability.
(3) Means : To accomplish its goals, PIL employs choice-of-law rules,
which :
(a) are bilateral rather than unilateral ;
(b) treat equally forum and foreign law, and forum and foreign
litigants ; and
(c) assign each “legal relation”, rather than parts of it, to a particular
state based on a pre-designated connecting factor, regardless
of :
1415. J. Kropholler and J. von Hein, “From Approach to Rule-Orientation in

American Tort Conflicts”, in J. Nafziger and S. Symeonides (eds.), Law and Justice in
a Multistate World : Essays in Honor of Arthur T. von Mehren, 317, 337 (2002). The
authors define “savignian” values as “multilateralism and predictability”, but also note
that “substantivism has made inroads into the ‘classic’ system”. Ibid.
1416. F. Vischer, “New Tendencies in European Conflict of Laws and the Influence
of the US-Doctrine : A Short Survey”, in J. Nafziger and S. Symeonides (eds.), Law
and Justice in a Multistate World : Essays in Honor of Arthur T. von Mehren 459, at
471 (2002).
(i) that state’s actual or imputed wish to apply its law ; and

(ii) the content of that law.
Section 2. Contemporary PIL
As the discussion in the previous chapters indicates, none of the above

features survived the twentieth century entirely intact. In colloquial
language, one could say that the classical model of PIL is so full of
holes, or exceptions, as to resemble the proverbial Swiss cheese 1417.
This conclusion is not judgmental ; it is merely diagnostic. This section
summarizes these exceptions.
A. Nature
As discussed in Chapter III, PIL is international only in terms of its

raw material, which consists of legal disputes that have extranational
elements ; but it is national in terms of its sources and binding force. It
is formulated by national lawmakers, subject to virtually no restraints
imposed by public international law. However, these lawmakers are
expected to be inspired by internationalist motives and goals. In this
sense, PIL is international in its aspirations. In formulating PIL rules,
national lawmakers should aspire to produce, or at least not impede,
international uniformity of result by, inter alia, placing forum and
foreign law and litigants on equal footing. In reality, however, the
pursuit of national objectives takes priority over these aspirations.
PIL is private law in the sense that it deals with disputes between
private persons ; that is, natural or legal persons other than states acting
in the exercise of governmental authority. However, as discussed in
Chapters IV and V, this does not mean that these disputes implicate
only the interests of the disputing parties. In many cases, these disputes
implicate the interests of the states affiliated with the parties through
domicile, nationality, or incorporation, or the states that have other
significant contacts with the dispute. Because of the involvement of
their interests, states are not indifferent to the outcome of conflicts
cases, although they are not as selfish as Brainerd Currie postulated.
Consequently, PIL is not as private and apolitical as Savigny assumed.
1417. As Jürgen Basedow notes, “[I]n the twentieth century, European private
international law”, i.e., Savigny’s PIL, “gradually lost much of its model character”.
Basedow, “Open Societies”, 477.
B. Goals
In de Boer’s blunt words, “If Savigny’s theory was meant to

bring about uniformity of result, or decisional harmony, it has failed
miserably.” 1418 Indeed, it is widely recognized today that the goal
of international uniformity regardless of forum, while laudable, is
unattainable. As explained in Chapters III-V, the theory and practice of
PIL have come to recognize other goals that should be pursued either in
parallel with uniformity or in derogation from it. Uniformity no longer
belongs at the top of the pyramid of goals. Each state constructs its own
pyramid of goals, defining them for itself, and ranking them according
to its own needs and preferences.
As a result of this development, goals other than uniformity have
risen in rank or have been newly articulated. Among them, the most
antithetical to international uniformity is the protection of national
interests and values. National lawmakers protect these interests and
values not only through old techniques, such as the ordre public
reservation, but also through a variety of other of tools, including
mandatory rules, unilateral choice-of-law rules, and certain bilateral –
but not impartial – rules.
Another goal that has risen in rank is the pursuit of material
justice as opposed to conflicts justice. Although this goal is not per
se antithetical to uniformity, it becomes such if each state defines
the preferred substantive result differently. The official view remains
that PIL aims at conflicts justice by identifying the state that has the
proper connections with the case, without regard to the content of that
state’s law and the quality of the substantive solution it produces in
the case at hand. However, as documented in Chapter VI, since the
middle of the twentieth century the material-justice view has gained
considerable ground at the expense of the conflicts-justice view. The
vast majority of PIL codifications enacted during this period contain
numerous result-selective rules designed to ensure the application of
a law that accomplishes a pre-designated substantive result, such as
upholding the validity of certain juridical acts, favouring a certain status,
or protecting a particular class of persons. Thus, we have moved from
an era in which material justice was officially unmentionable to an era
in which it has become an important and, in some instances, co-equal
goal to conflicts justice. Today, the dilemma is no longer (and perhaps it
1418. T. M. de Boer, “Facultative Choice of Law : The Procedural Status of Choice-

of-Law Rules and Foreign Law”, 257 Recueil des cours 223, at 285 (1996).
never should have been) an “either/or” choice between conflicts justice

and material justice. Rather, it is a question of when, how, and how
much the desideratum of material justice should temper the search for
conflicts justice.
Conversely, the goal of legal certainty and predictability has fallen
in rank, giving way to the need for flexibility. To be sure, legal certainty
continues to be an important goal, but it is no longer sacrosanct.
Modern PIL codifiers have recognized the increasing complexity of
contemporary cross-border activity and mobility, as well as their own
inability to anticipate all contingencies. Consequently, as Chapter VII
documents, most recent PIL codifications have introduced soft con-
necting factors and have taken the previously unprecedented step of
providing escape clauses expressly authorizing judges to deviate from
the codification’s rules in appropriate cases.
In short, international uniformity, conflicts justice, and legal certainty
are the goals of PIL – except when they are not.
C. Means
The reordering of goals described above resulted in an alteration or

transformation of the means, or the rules, that PIL uses to accomplish
those goals. A review of PIL codifications enacted in the last 50 years
indicates that bilateral, content-neutral choice-of-law rules continue to
be the majority. However, these rules now share the stage with rules that
are : (1) bilateral but not neutral, (2) unilateral, or (3) result-selective ;
and as noted above, some of these rules employ soft connecting factors
or are subject to escape clauses.
As documented in Chapters IV and V, several states employ
unilateral, or bilateral but non-neutral, rules whenever necessary to
protect or promote national interests or values. To the same end, many
states give priority to the forum’s mandatory rules, or insert “localizing
provisions” in substantive statutes, which give priority to those statutes
over the general rules of PIL codifications 1419. The high number of all of
these unilateralist devices and their employment in areas traditionally
viewed as being part of “private law” not only alters the nature of PIL
as purely private law but also explains why we are farther away from
attaining international uniformity than ever before.
1419. As Basedow notes, “[I]n the twentieth century, . . . [u]nilateral thinking

started to prevail. Governmental interests became more important than the protection
of private expectations.” Basedow, “Open Societies”, 477.
As Chapter VI documents, recent codifications employ numerous

rules designed to accomplish a particular substantive result, such as
upholding the validity of a juridical act, favouring a particular status, or
protecting a particular class of persons. Analytically and numerically,
these result-selective rules are exceptional in the sense that they
are outnumbered by traditional content-blind rules. However, the
sheer number of result-selective rules is too high, and their use too
widespread globally, to be dismissed as inconsequential. They are not.
Their ubiquity has altered the DNA of PIL.
Finally, Savigny’s vision of assigning a “definite” seat to each legal
relationship in order to provide certainty and promote uniformity
has suffered a triple setback because : first, even the old codifications
assigned different seats to certain relationships ; second, as documented
in Chapter VIII, most modern codifications have segmented many of
the traditional broad categories of legal relations and have authorized
the application of the laws of different states to the resulting segments
(i.e., dépeçage) ; and third, most recent codifications have adopted
soft connecting factors, such as the ubiquitous “closest connection”,
which transfer the task of seat assignment from the legislature to the
judiciary and postpone the actual assignment until the time of trial.
Escape clauses, also a relatively recent phenomenon, have a similar
effect as soft connecting factors in providing flexibility at the expense
of certainty and predictability.
Section 3. Not “Only in America”
Americans use the phrase “only in America” to describe a strange or

exceptional phenomenon – good or bad – that they perceive, erroneously
or not, as unlikely to occur in other countries. When used by people of
other nationalities, this phrase often has a negative connotation, usually
synonymous with excessive. Five of the preceding chapters have used
headings with the phrase “not ‘only in America’ ” to signify that certain
American PIL developments that foreign observers tend to dismiss (if
not deride) as American peculiarities are not at all unique ; they have
also occurred in many other countries, albeit with some delay and less
fanfare.
One factor that contributes to the dismissive attitude of foreign
observers towards American PIL is that they tend to focus on the writings
of the two most provocative American authors, Currie and Leflar, whose
influence on actual judicial practice declined significantly after the first
years of the revolution 1420, rather than on more moderate approaches,

such as that of the Restatement (Second), which is followed in a
plurality of US states 1421. Moreover, foreign observers tend to overlook
the caveats that accompanied Currie’s and Leflar’s approaches, as well
as the more moderate way in which courts have implemented these
approaches. For example, although Leflar boldly proposed the “better-
law” criterion, he also stated that this was “only one of five, more
important in some types of cases than in others, almost controlling
in some but irrelevant in others” 1422. As Chapter VI notes, American
courts eventually heeded this caveat, albeit with considerable delay 1423.
Likewise, although Currie articulated his interest analysis in bellicose
language, he also suggested “restraint and moderation” in identifying
state interests 1424. In applying this approach, many American courts
have not only disobeyed Currie’s proscription of interest-weighing, but
have also shown commendable deference to the interests of the non-
forum state 1425. Finally, Currie was equally extreme in denouncing all
choice-of-law rules, not only those of the First Restatement 1426 and
calling for a revolution rather than evolution. Initially, American courts
heeded his call and abandoned all rules in tort and contract conflicts
in favour of exceedingly flexible ad hoc approaches. However, after
a few years of freewheeling experimentation with these approaches,
the courts began converging into uniform decisional patterns, thus
1420. See Symeonides, Oxford Commentaries 163-168, 171-173.

1421. See ibid., 151-154.
1986).
1423. See supra, Chap. VI.3.B.2.b (noting that the judicial use of the better-law
criterion has declined considerably in the last two decades).
1424. See, e.g., B. Currie, “The Disinterested Third State”, 28 Law & Contemp.
Probs. 754, at 757 (1963) :
“[N]o principle dictates that a state exploit every possible conflict, or exert to
the outermost limits its constitutional power. On the contrary, to assert a conflict
between the interests of the forum and the foreign state is a serious matter ; the
mere fact that a suggested broad conception of a local interest will create conflict
with that of a foreign state is a sound reason why the conception should be
re-examined, with a view to a more moderate and restrained interpretation both
of the policy and of the circumstances in which it must be applied to effectuate
the forum’s legitimate purpose.”
In this Article, Currie uses the term “moderation” and its variants eleven times.
1425. See supra, Chap. IV.2.E.2.
1426. See Currie, Selected Essays 180 (“The [traditional] rules . . . have not worked
and cannot be made to Work. . . . But the root of the trouble goes deeper. In attempting
are bad, . . . but rather from the fact that we have such rules at all”).
restoring a modicum of predictability to the choice-of-law process 1427.

There is good reason to expect that the drafting of the Third Conflicts
Restatement will consolidate this progress 1428.
Whether or not the American developments have contributed to the
changes in the classical PIL model is an interesting question that has
occupied both American and foreign conflicts scholars 1429. As Celia
Fassberg notes, “[T]he vast and prolific American literature on choice
of law methodology was widely read and widely cited by scholars,

1428. See S. C. Symeonides, “The Choice-of-Law Revolution Fifty Years after
Currie : An End and a Beginning” 2015 U. Ill. L. Rev. 1847, 1907-1921 (2015). A
preliminary draft of the Third Conflicts Restatement confirms this expectation. See
American Law Institute, “Restatement of the Law Third, Conflict of Laws, Preliminary
Draft No. 2” (12 August 2016).
1429. This question is exhaustively discussed in, inter alia, B. Audit, “A Con-
tinental Lawyer Looks at Contemporary American Choice-of-Law Principles”,
27 Am. J. Comp. L. 589 (1979) ; T. M. de Boer, “Prospects for European Conflicts
Law in the Twenty-First Century”, in P. J. Borchers and J. Zekoll (eds.), International
Conflict of Laws for the Third Millennium : Essays in Honor of Friedrich K. Juenger
193 (2001) ; J. Dolinger, “Evolution of Principles for Resolving Conflicts in the Field
of Contracts and Torts”, 283 Recueil des cours 189, 381-386, 468-482 (2000) ; P. Hay,
“European Conflicts Law after the American ‘Revolution’ – Comparative Notes”, 2015
U. Ill. L. Rev. 2053 (2015) ; B. Hanotiau, “The American Conflicts Revolution and
European Tort Choice-of-Law Thinking”, 30 Am. J. Comp. L. 73 (1982) ; E. Jayme,
“The American Conflicts Revolution and Its Impact on European Private International
Law”, in Univ. van Amsterdam Centrum voor Buitenlands Recht en IPR (eds.), Forty
Years On : The Evolution of Postwar Private International Law in Europe, 15 (1992) ;
F. K. Juenger, “American and European Conflicts Law, 30 Am. J. Comp. L. 117 (1982) ;
G. Kegel, “Paternal Home and Dream Home : Traditional Conflict of Laws and the
American Reformers”, 27 Am. J. Comp. L. 615 (1979) ; O. Lando, “New American
Choice-of-Law Principles and the European Conflict of Laws of Contracts”, 30 Am.
J. Comp. L. 19 (1982) ; R. Michaels, “Introduction to The New European Choice
of Law Revolution”, 82 Tul. L. Rev. 1607 (2008) ; M. Reimann, “Domestic and
International Law in the United States and Western Europe”, in P. J. Borchers and
J. Zekoll (eds.), International Conflict of Laws for the Third Millennium : Essays in
Honor of Friedrich K. Juenger 109 (2001) ; M. Reimann, “American Private Law
and European Legal Unification – Can the United States be a Model ?”, 3 Maastricht
J. Eur. & Comp. L. 217 (1996) ; K. Siehr, “Domestic Relations in European Private
International Law : European Equivalents to American Evolutions in Conflict of
Laws”, 30 Am. J. Comp. L. 37 (1982) ; K. Siehr, “Ehrenzweigs lex-fori-Theorie und
ihre Bedeutung für das amerikanische und deutsche Kollisionsrecht”, 34 RabelsZ 583
(1970) ; S. C. Symeonides, “The American Revolution and the European Evolution in
Choice of Law : Reciprocal Lessons”, 82 Tul. L. Rev. 1741 (2008) ; F. Vischer, “New
Tendencies in European Conflict of Laws and the Influence of the US-Doctrine : A
Short Survey”, in J. Nafziger and S. Symeonides (eds.), Law and Justice in a Multistate
World : Essays in Honor of Arthur T. von Mehren 459 (2002) ; E. Vitta, “The Impact
in Europe of the American ‘Conflicts Revolution’ ”, 30 Am. J. Comp. L. 1 (1982). See
also S. Symeonides, An Outsider’s View of the American Approach to Choice of Law :
Comparative Observations on Current American and Continental Conflicts Doctrine
159-374 (1980).
legislators, and courts outside the United States.” 1430 Several European

authors have acknowledged that “American thinking has pervaded
[European PIL] by osmosis” 1431 and “[shaken] up traditional concepts
and widened the discussion” 1432 in Europe ; that some of the changes
“are the result of the fundamental methodological debate that started in
the United States” 1433 and “can be attributed . . . to the reverberations
the American conflicts revolution had in the rest of the world” 1434 ;
and that European legislators and judges “took advantage of the fact
that they were to decide later than their American colleagues” 1435,
and thus they could “pick the raisins” 1436 – they could selectively
draw from the American experience without repeating its excesses.
Other authors see less of a direct influence but acknowledge that the
American developments have prompted European lawmakers, judges,

and Out with a Whimper”, 163 U. Pa. L. Rev. 1919, 1932 (2015). The author concludes
this literature has been “wholeheartedly and unequivocally rejected” outside the United
States. Ibid. Nevertheless, as the author’s subsequent description of the European
PIL reforms indicates, this was a rejection of the means rather than the substance of
the American ideas. See, e.g., ibid. “While many of the concerns that had troubled
American Realists troubled other legal systems too, these systems responded not by
rejecting the traditional model but by re-forming it”).
en IPR (eds.), Forty Years On : The Evolution of Postwar Private International Law in
Europe 15, at 24 (1992).
1432. F. Vischer, “General Course”, 72. See also F. Vischer, “New Tendencies in
European Conflict of Laws and the Influence of the US-Doctrine : A Short Survey”, in
J. Nafziger and S. Symeonides (eds.), Law and Justice in a Multistate World : Essays in
Honor of Arthur T. von Mehren 459, at 471 (2002) (“[T]he influence of U.S. doctrine on
European conflict-of-laws solutions is more significant than the reverse”).
1433. Basedow, “Open Societies”, 40.
1434. De Boer, “Living Apart Together”, at 203 :
“In short, the dissatisfaction with traditional choice of law may have caused
a methodological revolution in the United States, but it did not fail to affect the
development of choice of law in other jurisdictions, especially in Europe, even if
they remained faithful to traditional choice-of-law conceptions. Their conflicts
rules no longer depend on abstract geographical factors alone. There is room for
flexibility in the designation of the applicable law. Substantive values and policies
have been translated into connecting factors focusing on the weaker party, or into
alternative reference rules favoring a specific substantive result. These changes
can be attributed, I think, to the reverberations the American conflicts revolution
had in the rest of the world.”
en IPR (eds.), Forty Years On : The Evolution of Postwar Private International Law in
Europe 15, at 22 (1992).
1436. P. Hay, “European Conflicts Law after the American ‘Revolution’ –
Comparative Notes”, 2015 U. Ill. L. Rev. 2053, 2055 (2015).
and academics to “reconsider their methods and solutions” 1437. On

balance, Peter Hay’s characterization of this process as a “conscious
parallelism” 1438 between American and European developments is
the most accurate 1439. After all, even when acting in isolation, com-
parable legal systems tend to react similarly in response to the same
challenges 1440.
This parallelism is more obvious in substantive solutions rather than
in methodology and form. For example, as documented in another
publication, there is a surprising similarity between, on the one hand,
the way American courts resolve tort conflicts after the revolution,
and, on the other, the solutions adopted by most of the recent PIL
codifications in Europe and elsewhere 1441. The similarity is striking in
common-domicile cases (i.e., cases in which both parties are domiciled
in one state but are involved in a tort occurring in another state) 1442, but
it also extends to several other patterns, including those arising from
cross-border torts 1443.
The parallelism in methodology and form is less obvious, but it
exists. For reasons that have to do with the training and mindset of
European judges and European legal culture in general, “The principle
of legal certainty is of greater importance in Europe than in the US,
1437. P. Lagarde, “Le principe de proximité dans le droit international privé

contemporain”, 196 Recueil des cours 9, 25 (1986) (“Je ne crois pas que ces doctrines
[américaines] aient exercé une influence directe et importante sur les droits des pays
européens. Mais je suis sûr qu’elles ont amené les juristes de ces pays, qu’il s’agisse des
professeurs, des magistrats ou des gouvernants, à reconsidérer leurs méthodes et leurs
solutions”). See also, Basedow, “Open Societies”, at 40 (characterizing these changes
as “European answers to the American Conflicts Revolution”).
1438. P. Hay, “European Conflicts Law after the American ‘Revolution’ –
Comparative Notes”, 2015 U. Ill. L. Rev. 2053, 2055-2056 (2015) (“The European
changes occurred later than in the United States, . . . and they did so against the
background and with knowledge of what had occurred [in the US]. . . . Europeans could
‘pick the raisins’ out of what the American experience had to offer. Their new conflicts
law did not just evolve from within ; a good part of the development resulted from what
antitrust lawyers might call ‘conscious parallelism’ ”).
1439. In his work, Frank Vischer also refers to “independent and parallel
movements” but he acknowledges that, partly as a result of American influence,
“the almost mechanical application of the traditional bilateral conflict rules and their
blindness to the substantive result began as well to concern legislators in the field of
conflict of laws” and “the critique led to the development of new devices and solutions”.
F. Vischer, “General Course”, at 72.
1440. Cf. F. K. Juenger, “American and European Conflicts Law”, 30 Am. J. Comp.
L. 117, 120 (1982) (“The parallels between American and European thought, whether
the results of creative borrowing or of independent reinvention, are not surprising . . .
[because] the basic ideas are not peculiar to any country or continent”).
1442. See ibid., 46-47, 72-80.
1443. See ibid., 48-49, 59-67.
where courts feel more inclined to attribute primary importance to the

satisfactory solution of individual cases.” 1444 As Mathias Reimann
notes,
“[V]ague policy analysis, contested notions of state interests,
and ambiguous multifactor tests were anathema in a legal culture
that has prized precise concepts and clear rules, that ranks the
certainty of the law higher than its flexibility, and that prefers
consistent results over individual justice.” 1445
In a similar vein, Celia Fassberg points to “the incompatibility
of unrestrained judicial policy analysis with non-American legal
traditions”, noting that “[i]n civil law systems, judges are not entrusted
with the development of doctrine and . . . are confined by the conceptual
structure of systems in which rules tend to be codified, or at the very
least legislated” 1446.
The above reasons explain why European PIL opted for evolution
rather than revolution. But what is important is that both American and
European PIL have moved in the same direction, albeit to a different
extent and at a different speed. In characteristically radical fashion,
American conflicts law careened from the one extreme of the first
Restatement’s rigidity to the other extreme of total flexibility. In equally
characteristic old-world fashion, European and other codified PIL
system moved cautiously and slowly from rigidity toward flexibility.
Rather than abandon their rules in favour of ad hoc “approaches”, they
injected small, controlled doses of flexibility through some new devices,
as well as through some old and tested ones. But they did move toward
flexibility. As a German author notes, as a result of these developments,
“[T]he original severity of [PIL’s] forms has been mitigated ;
the previous strictness of its structures has been moderated ; the
1444. O. Lando and P. A. Nielsen, “The Rome I Proposal”, 3 J. Priv. Int’l L. 29, 36
(2007).
1445. M. Reimann, “Domestic and International Law in the United States and
Western Europe”, in P. J. Borchers and J. Zekoll (eds.), International Conflict of
Laws for the Third Millennium : Essays in Honor of Friedrich K. Juenger 109, 113
(2001) ; cf. 1 A. Ehrenzweig, Private International Law, at 52 (1972) (noting “a deep
contrast between the order and harmony of European scholarship and the disorder and
disharmony of American practice”).
1446. C.W. Fassberg, “Realism and Revolution in Conflict of Laws : In with a Bang
and Out with a Whimper”, 163 U. Pa. L. Rev. 1919, 1937-1938 (2015). See also ibid.,
at 1938 (“Even in common law countries outside the United States, where judges do
have an acknowledged role in developing the law, the traditional supremacy of the
legislature and the preference for procedural rather than substantive justice constrain
the free exercise of discretionary judicial power”).
former rigidity of the rules has been loosened ; the old crampedness
of the principles has been broken. The conflict rules . . . and the
connecting factors . . . have become decidedly more diverse and
flexible than before . . . and sophisticated exception clauses,
elaborate evasion clauses and intricate escape clauses have been
designed.” 1447
The same parallel movement can be seen with regard to all the other
major themes discussed in this volume, namely :
(1) the presence of state interests in multistate disputes between private
parties 1448 ;
(2) the antagonism between and the complementarity of unilateralism
and multilateralism 1449 ;
(3) the recognition of the need for material justice 1450 ; and
(4) the narrowing of legal categories and rules 1451.
As the preceding chapters have demonstrated, the European and
American approaches to PIL have moved in the same direction, although
not to the same extent. As a result of this movement at its birthplace, the
classical PIL model no longer reflects today’s realities.
Section 4. Evolution, Pragmatism, and Eclecticism
As this volume documents, contemporary PIL is not methodologically

pure, blindfolded, value-neutral, or impartial vis-à-vis national interests
and values. For those who believe, rightly or not, that the classical PIL
model possessed all of these attributes, these developments represent
significant changes.
Whether these changes represent progress or regress is a matter on
which reasonable minds can differ. For example, idealists would argue
that the loss of neutrality and “innocence” is regrettable. Perhaps this is
so, but it would be even more regrettable if we were to pretend that it has
not occurred. A good understanding of reality is the first precondition
for successfully addressing the challenges it poses. Whether we like it
or not, states do and will continue to protect substantive values they
1447. Martinek, “Seven Pillars”, para. 61. See also Fassberg, “Realism and
Revolution”, at 1934-1935.
1448. See supra, Chap. IV.3.
1449. See supra, Chap. V.4.
1450. See supra, Chap. VI.5-6.
1451. See supra, Chap. VII.3-4.
hold dear, and they will become increasingly bold in asserting their
interests in multistate disputes between private parties. Our discipline,
especially the academic segment of it, can serve the interstate and
international legal order by recognizing the existence of state interests,
determining when they truly conflict, and articulating the principles and
mechanisms that will provide a reasonable accommodation between
these interests.
Traditionalists may also regret the loss of methodological and
philosophical purity. By contrast, pragmatists may applaud the
emerging “pluralisme des méthodes” 1452, a phenomenon which Henry
Batiffol identified more than four decades ago and Bernard Audit later
characterized as “the dominant trend” in the evolution of PIL during the
twentieth century 1453. After trying purism during the first six centuries
since the birth of Bartolus and running into recurring impasses, PIL has
turned to methodological pluralism. This phenomenon is particularly
obvious to anyone who takes seriously the polemical academic
literature, which often gives the impression of a virtual civil war among
rival schools of thought 1454. However, PIL is not made by academics.
It is made by legislators and judges ; and they (unlike academics) are
rarely committed to methodological purity 1455. More often than not,
they have no qualms about combining ideas whose proponents have
posited as polar opposites, such as multilateralism with unilateralism,
and conflicts justice with material justice.
1452. H. Batiffol, “Le pluralisme des méthodes en droit international privé”, 139
Recueil des cours 75, 64, 106 (1973). See also G. van Hecke, “Principes et méthodes
de solution des conflits de lois”, 126 Recueil des cours 399-569 (1969). Methodological
pluralism was one of the central themes of Andreas Bucher’s excellent “General
Course” at The Hague Academy of International Law in 2009. See Bucher, “La
dimension sociale”, 28-167.
1453. B. Audit, “Rapport Français”, in S. Symeonides (ed.), Progress or Regress ?
191 at 210 (“[L]e pluralisme des méthodes constitue une tendance dominante de
l’évolution du droit international privé français au cours du XXe siècle”). Although
Audit was referring to French PIL, his comment applies equally to PIL in general.
See B. Audit, “Le droit internationale privé en quête d’universalité”, 305 Recueil des
cours 9, 477 (2003) (“Le droit positif contemporain connaît donc un pluralisme des
méthodes”).
1454. Cf. F. Vischer, “General Course”, at 32 (“More than other branches of law,
conflict of laws is dominated by a specially marked conceptual thinking. But rigid
systems reach a point where they tend to become unworkable and lead to irrational
results. Reformers then attempt to demolish the traditional constructions and replace
them by new ones. But again, the new methods proposed remain to a certain degree
variations of the named approaches”).
1455. Cf. M. Martinek, “Seven Pillars”, at para. 6.1 (noting that in the drafting of
German and Swiss codification, “[n]o conceptional [sic] purism could be sustained ;
compromises had to be made”).
When pluralism is voluntary rather than forced or accidental it is called

eclecticism, and eclecticism is the dominant feature of contemporary
PIL. Admittedly, eclecticism has a bad reputation 1456. This reputation
is justified when eclecticism is the result of subservient imitation
or intellectual laziness rather than careful deliberate choices 1457
.
Uncritical, undigested, and uncoordinated “picking and choosing”
can lead to internal contradictions and incoherence 1458. Perhaps that is
what Ehrenzweig had in mind when he spoke of “pitiful compromises
with a pitiless reality” 1459. But a considered, adapted, and thoughtful
eclecticism can combine the “best of both worlds”. It can live up to the
true meaning of this Greek word, which translates literally as “choosing
well” 1460.
Moreover, eclecticism is often the most practical response to
the complexity of the modern world and a sensible choice between
opposing perceptions of the same reality. Take, for example, the epic
clash between Savigny’s idealistic vision and Currie’s realpolitik
protectionist vision or its more moderate equivalents in other countries.
Savigny saw PIL as an impartial mediator of multistate disputes that
implicate only the private interest of the disputants. In this context and
upon this premise, the doctrine of equality between forum and foreign
law was simply a natural corollary of that impartiality, and international
1456. For criticisms, see, e.g.. W. A. Reppy Jr., “Eclecticism in Choice of Law :
Hybrid Method or Mishmash ?”, 34 Mercer L. Rev. 645 (1983) ; W. A. Reppy Jr.,
“Eclecticism in Methods for Resolving Tort and Contract Conflict of Laws : The United
States and the European Union”, 82 Tul. L. Rev. 2053 (2008). Reppy disapproves of
most, but not all, uses of eclecticism by American courts in conflicts cases and provides
seven reasons for such eclecticism : “methodless ad hoc decisionmaking”, “pure better
law in disguise”, “confused lower court”, “kitchen sink”, “odd-numbered mishmash”,
“blend of coffee”, and “uninformed judge”. Reppy, Mercer L. Rev. 651-654.
1457. According to Mathias Reimann,
“[M]ethodological eclecticism has its downsides. Different elements often
point in different directions and thus create a danger of decisional deadlock.
And sophisticated combinations of rules and exceptions, connecting factors and
criteria, and goals and policies work properly only in the hands of sophisticated
judges. In the hands of mediocre, hurried, or lazy decision makers, eclecticism
invites confusion and indeterminacy.” M. Reimann, “Book Review (reviewing
Symeonides, Codifying Choice of Law around The World : An International
Comparative Analysis)”, 63 Am. J. Comp. L. 801, 808 (2015).
1458. See Bucher, “La dimension sociale”, at 94 (“[L]e pluralisme des méthodes
n’est pas un panier dans lequel on pourrait placer toute nouvelle approche sans faire
attention à ce qui s’y trouve déjà. Il convient de privilégier une évolution dans la
cohérence”).
1460. The word “eclecticism” derives from the Greek words εκλεκτικός (eklektikos),
which means the one who chooses well, and εκλεκτός (eklektos), which means the well-
chosen.
uniformity could be seen as not only desirable but also achievable.

Currie, on the other hand, saw conflicts law as a means of resolving
actual conflicts between states, almost akin to those falling within the
ambit of public international law. He therefore saw nothing wrong
with actively promoting the interests of the forum state at almost every
juncture, because to do otherwise would be to “suppress the natural
instincts of community self-interest” and endorse a “purposeless self-
denial” 1461.
None of the modern PIL codifications has accepted Currie’s
assumptions and his overtly “political” 1462 and polemical approach.
However, most codifications have recognized that some categories of
conflicts cases, indeed, a significant number, do implicate important
interests of the forum state and have accordingly adopted unilateral rules
and other unilateralist devices designed to protect those interests. The
result is an eclectic combination of multilateralism and unilateralism,
which the purists may find unprincipled and incongruous, but which is
a practical and workable response to contemporary realities 1463. In the
final analysis, the difference between this combination and the classic
multilateralist model is not so much a difference in substance as it is
one of means and degree. The classic model viewed the presence of
national interests as rare and exceptional and entrusted their protection
to judges though the ordre public reservation. Without abolishing the
judges’ defensive role in that regard, contemporary PIL codifiers have
asserted their own right to determine affirmatively and ex ante when
national interests are at stake and how to protect them.
A pragmatic eclecticism also characterizes the position of new
codifications on the other major clash between the proponents of
conflicts justice and material justice. In the eyes of conflicts justice
proponents, PIL should be more concerned with geographic propriety
and symmetry – assigning the “seat” of each legal relationship to the
right state – rather than with the result that assignment would produce.
In their view, the choice-of-law process should lead to the application of
1461. Currie, Selected Essays, at 525.

1462. See M. Martinek, “Seven Pillars”, at para. 5.1 (referring to “the wrongfulness
of a decidedly and expressly political approach like the governmental interest analysis
approach (Currie) which once was fashionable in the U.S.A.”).
1463. See T. Pajor, “Polish Report”, in S. Symeonides (ed.), Progress or Regress, at
346 (noting that “the return in PIL to recognition of a multiplicity of regulatory methods
must be viewed as progress. This return may be seen, for example, in the existence of
both multilateral and unilateral approaches in the same legal system, allowing choice of
law solutions to be adapted to the variety of substantive law regulations”).
the law of the state that has the proper contacts with the case, regardless
of the material quality of the result the application of that law will
produce. At the other end of the spectrum, material justice proponents,
such as Leflar and Juenger, want the judge to always “choos[e] law with
an eye on the prize” 1464.
Modern codifications would never go that far ; nor should they have
to. However, they have recognized that, in a significant number of cases,
such as those involving children, maintenance obligees, consumers,
tort victims, and other presumptively weak parties, the geographic
propriety of the choice of law is far less important than the substantive
propriety of the result which that law would produce in the particular
case. Accordingly, “[T]raditional rules were modified to provide
solutions to the problems of blindness to content and rigidity.” 1465
Modern codifications have adopted result-selective rules that authorize
the court, and in some instances the weak party, to choose the law (from
among geographically connected laws) that produces the proper result.
The proliferation of such result-selective rules and their co-existence
with state-selective, content-neutral rules may offend the purists, but it
is another example of a sensible, pragmatic eclecticism that enables PIL
to serve justice not preceded by an adjective.
In the final analysis, the modern legal mind has come to realize that
the complexity of contemporary conflicts problems requires a toolbox
approach – the more tools the better – rather than a single tool or method ;
that no single theory or school of thought has all the right solutions
to all conflicts problems, but each school has something valuable to
contribute ; and that, rather than choosing a single school or method
wholesale, it is better to draw the best ideas from each and properly
combine them into a workable system. Most of the recent codifications
have engaged in such an eclecticism. Whether they have chosen well
is a matter of opinion ; this author’s opinion is that most of them have.
Section 5. Conclusion
The classical PIL model developed by Savigny has undergone

significant changes, especially during the last half-century. The purpose
of this volume was to identify these changes rather than to applaud
1464. R. Weintraub, “Choosing Law with an Eye on the Prize”, 15 Mich. J. Int’l L.
705 (1994) (reviewing F. Juenger, Choice of Law Multistate Justice (1993)).
and Out with a Whimper”, 163 U. Pa. L. Rev. 1919, 1932 (2015).
or lament them. Whether all or some of those changes have been

beneficial or detrimental is a matter on which reasonable people will
continue to differ. What is clear, however, is that most of these changes
were inevitable simply because today’s world is less homogeneous,
more mobile, and far more complex and multipolar than Savigny’s 1466.
To quote an old Chinese proverb, “A wise man adapts himself to
circumstances, as water shapes itself to the vessel that contains it.” In
the same way, PIL has had to evolve and adapt itself to contemporary
realities and needs – and it has. Even if some of the above changes were
avoidable, they have occurred. It is unrealistic and unhelpful to teach
and think about this subject as if they have not occurred 1467.
Writing in 1965 and counting from Bartolus’s death, David Cavers
described the quest of PIL for proper choice-of-law solutions as “six
centuries of frustration” 1468. One year earlier, Gerhard Kegel rejected
certain writers’ contention 1469 that PIL was undergoing a “crisis”,
and proclaimed that, despite sustained attacks by several critics,
“conflicts law remain[ed] unshaken” 1470. Shortly after the turn of the
century, another writer discussing the challenges posed by the Internet
concluded that “conflicts law is not dead yet, but is on its deathbed” 1471.
As is often the case, some people see the glass as half-empty, other
see it as half-full, and others look at what is in the glass. If indeed PIL
is unshaken, it has been stirred and has “re-shaped itself to the vessel
that contains it”. It is not “on its deathbed”. It is less idealistic and less
“pure” than the classical model, but it is richer and more pragmatic,
vibrant, sophisticated, flexible, and pluralistic than ever before.
1466. See Basedow, “Open Societies”, at 35 (“[P]rivate international law . . .

has profoundly changed in character and role over the last decades. . . . [It] can
currently be described . . . as the key to the private law of global home affairs in a
multi-jurisdictional world. This change is due to the growing permeability of national
frontiers, the progressive inter-connectedness of societies and economies and to the
internationalization of individual lives”).
1467. “Since we cannot change reality, let us change the eyes which see reality.”
N. Kazantzakis, Report to Greco 45 (P. A. Bien, transl., 1973).
1468. Cavers, Process 1.
1469. See P. H. Neuhaus, “Die Krise im internationalen Privatrecht”, 3 Deutsche
Rechtszeitschrift 86 (1948) ; H. Kronstein, “Crisis of Conflict of Laws”, 37 Geo. LJ
483 (1949).
1470. Kegel, “Crisis”, at 263. Kegel continues, “The prevailing opinion, which
sticks to the traditional system of conflict of laws, finds itself, as it were, in the middle
of a target screen. It is surrounded on all sides by interesting minority views which
make life difficult. But then : ‘Crisis is a way of life’ !” Ibid.
1471. U. Kohl, “Eggs, Jurisdiction, and the Internet”, 51 Int’l & Comp. LQ 555,
557 (2002).
BIBLIOGRAPHY
Agrawal, K., Private International Law in India, 2010.

Ahern, J., and W. Binchy (eds.), The Rome II Regulation on the Law Applicable
to Non-Contractual Obligations : A New International Litigation Regime, 2009.
Albornoz, M., “Choice of Law in International Contracts in Latin American Legal
Systems”, 6 J. Priv. Int’l L. 23 (2010).
Allen, W., and E. O’Hara, “Second Generation Law and Economics of Conflict of
Laws : Baxter’s Comparative Impairment and Beyond”, 51 Stan. L. Rev. 1011
(1999).
Ancel, B., and H. Muir Watt, “The Relevance of Substantive International
Commercial Norms for Choice of Law in Contract : The Rome and Mexico City
Conventions Compared”, in Festschrift Juenger 1 (2006).
Anderson, W., Caribbean Private International Law, 2014.
Andrews, D., and J. Newman, “Personal Jurisdiction and Choice of Law in the
Cloud”, 73 Md. L. Rev. 313 (2013).
Angelo, A. H., Private International Law in New Zealand, 2012.
Ansay, T., “The Anatomy of Turkey’s New Private International Law Regime”, 74
RabelsZ 393 (2010).
Audit, B., “Le droit international privé en quête d’universalité”, 305 Recueil des
cours 9, 2004.
–, “Le droit international privé français à la fin du vingtième siècle : Progrès ou
recul ?”, in S. Symeonides, Private International Law at the End of the 20th
Century : Progress or Regress ? 191 (2000).
–, “Le caractère fonctionnel de la règle de conflit”, 186 Recueil des cours 219
(1985).
–, “A Continental Lawyer Looks at Contemporary American Choice-of-Law
Principles”, 27 Am. J. Comp. L. 589 (1979).
Audit, B., and L. d’Avout, Droit international privé, 6th ed., 2010.
Azcárraga Monzonís, C., “An Old Issue from a Current Perspective : American and
European Private International Law”, 12 Ybk. Priv. Int’l L. 639 (2010).
Baade, H., “Counter-Revolution or Alliance for Progress ? Reflections on Reading
Cavers, The Choice-of-Law Process”, 46 Tex. L. Rev. 141 (1967).
Baarsma, N A., “European Choice of Law on Divorce, Rome III : Where Did It Go
Wrong ?” 27 Nederl. Int’l PrvR. 9 (2009).
Bagheri, M., “Conflict of Laws, Economic Regulations and Corrective/Distributive
Justice”, 28 U. Pa. J. Int’l Econ. L. 113 (2007).
Bariatti, S., Cases and Materials on EU Private International Law, 2011.
Basedow, J., “The Law of Open Societies : Private Ordering and Public Regulation
in the Conflict of Laws”, 360 Recueil des cours 9 (2013).
–, “Theory of Choice of Law”, 75 RabelsZ 32 (2011).
–, “The Communaurisation of Private International Law”, 73 RabelZ 455 (2009).
–, “Federal Choice of Law in Europe and the United States – A Comparative
Account of Interstate Conflicts”, 82 Tul. L. Rev. 2119 (2008).
–, “The State’s Private Law and the Economy – Commercial Law as an Amalgam
of Public and Private Rule-Making”, 56 Am. J. Comp. L. 703 (2008).
Basedow, J., and K. B. Pissler (eds.), Private International Law in Mainland China,
Taiwan and Europe, 2014.
Basedow, J., H. Baum and Y. Nishitani (eds.), Japanese and European Private
International Law in Comparative Perspective, 2008.
Basedow, J., et al. (eds.), Encyclopedia of PIL, 2017.
Batiffol, H., “Le pluralisme des méthodes en droit international privé”, 139 Recueil
des cours 75 (1973).
Baxter, W., “Choice of Law and the Federal System”, 16 Stan. L. Rev. 1 (1963).
Beale, J., Treatise on the Conflicts of Laws, 1935.

Belandro, R. B., “Pasado y Presente de la Codificaciόn del Derecho Internacional
Privado en América Latina”, in Festschrift Juenger 171 (2006).
Berger, K. B., The Creeping Codification of the New Lex Mercatoria, 2nd ed., 2010.
Berman, H. J., “Is Conflict-of-Laws Becoming Passé ? An Historical Response”, in
Festschrift Peter Hay 43 (2005).
Berman, P. S., Global Legal Pluralism : A Jurisprudence of Law beyond Borders,
2014.
–, “Conflict of Laws, Globalization, and Cosmopolitan Pluralism”, 51 Wayne L.
Rev. 1105 (2005).
–, “From International Law to Law and Globalization”, 43 Colum. J. Transnat’l L.
485 (2005).
–, “Towards a Cosmopolitan Vision of Conflict of Laws : Redefining Governmental
Interests in a Global Era”, 153 U. Pa. L. Rev. 1819 (2005).
Bernasconi, C., “Civil Liability Resulting from Transfrontier Environmental
Damage : A Case for the Hague Conference ?, 12 Hague Ybk. Int’l L. 35 (2000).
Bliesener, D., “Fairness and Choice of Law : A Critique of the Political Rights-
Based Approach to the Conflict of Laws”, 42 Am. J. Comp. L. 687 (1994).
Bodenheimer, E., “The Need for a Reorientation in American Conflicts Law”, 19
Hastings LJ 731 (1978).
Boele-Woelki, K., “Unifying and Harmonizing Substantive Law and the Role of
Conflict of Laws”, 340 Recueil des cours 271 (2010).
–, “For Better or for Worse : The Europeanization of International Divorce Law”,
12 Ybk. Priv. Int’l L. 1 (2010).
–, “The Communitarization of Private International Law “ 4 Ybk. Priv. Int’l L. 1
(2002).
–, “Unification and Harmonization of Private International Law in Europe”,
in Private Law in the International Arena – Liber Amicorum Kurt Siehr 61,
J. Basedow et al. (eds.), 2000.
Boele-Woelki, K., and R. J. ter Rele (eds.), European Private International Law
2015-2017, 2nd ed., 2015.
Boele-Woelki, K., C. Joustra and G. Steenhoff, “Dutch Private International Law at
the End of the 20th Century : Progress or Regress ?”, in S. Symeonides, Private
International Law at the End of the 20th Century : Progress or Regress ? 295
(2000).
Boele-Woelki, K., N. Dethloff and W. Gephart (eds.), Family Law and Culture in
Europe, 2014.
Boele-Woelki, K., T. Einhorn, D. Girsberger and S. Symeonides (eds.), Convergence
and Divergence in Private International Law – Liber Amicorum Kurt Siehr, 2010.
Bogdan, M., Private International Law in Sweden, 2nd ed., 2015.
–, Concise Introduction to EU Private International Law, 2012.
–, “Private International Law as Component of the Law of the Forum”, 348 Recueil
des cours 9 (2011).
–, “The Rome I Regulation on the Law Applicable to Contractual Obligations and
the Choice of Law by the Parties”, 2009 Nederl. IPR. 407 (2009).
Bogdan, M., and U. Maunsbach, EU Private International Law : An ECJ Casebook,
2012.
Boggiano, A., “The Law of the Relations between Legal Systems : A Methodological
Analysis”, in Private Law in the International Arena : Liber Amicorum Kurt Siehr
79 (2000).
Bolard, “Universalisme ou nationalisme : l’hésitation française”, Ann. Suiss. dip.
83 (1977).
Bonell, M., “Towards a Legislative Codification of the UNIDROIT Principles ?”, 12
Unif. L. Rev. 233 (2007).
–,“Soft Law and Party Autonomy : The Case of the UNIDROIT Principles”, 51 Loy.
L. Rev. 229 (2005).
Bonell, M. J., L. Holle and P. A. Nielsen (eds.), Liber Amicorum Ole Lando, 2012.
Bonomi, A., Le norme imperative nell diritto internazionale privato, 1998.

–, “Testamentary Freedom or Forced Heirship ? Balancing Party Autonomy and the
Protection of Family Members”, 2010 Nederl. Int’l Priv. 605 (2010).
–, “Overriding Mandatory Provisions in the Rome I Regulation on the Law
Applicable to Contracts”, 10 Ybk. Priv. Int’l L. 285 (2008).
–, “Overriding Mandatory Provisions in the Rome I Regulation on the Law
Applicable to Contracts”, 10 Ybk. Priv. Int’l L. 285 (2008).
–, “The Hague Protocol of 23 November 2007 on the Law Applicable to
Maintenance Obligations, 10 Ybk. Priv. Int’l L. 333 (2008).
–, “The Rome I Regulation on the Law Applicable to Contractual Obligations :
Some General Remarks, 10 Ybk. Priv. Int’l L. 165 (2008).
–, “The Role of Internationally Mandatory Rules in a European Private International
Law System”, Roman. Priv. Int’l L. & Comp. Priv. L. Rev. 159 (2007).
–, “The Italian Statute on Private International Law”, 27 Int’l J. Leg. Inf. 247
(1999).
–, “Mandatory Rules in Private International Law : The Quest for Uniformity of
Decisions in a Global Environment”, 1 Ybk. Priv. Int’l L. 219 (1999).
Borchers, P., Conflicts in a Nutshell, 4th ed., 2015.
–, “Conflict-of-Laws Considerations in State Court Human Rights Actions”, 3 UC
Irvine L. Rev. 45 (2013).
–, “Punitive Damages, Forum Shopping, and the Conflict of Laws”, 70 La. L. Rev.
529 (2010).
–, “The Emergence of Quasi Rules in U.S. Conflicts Law”, 12 Ybk. Priv. Int’l L.
93 (2010).
–, “Categorical Exceptions to Party Autonomy in Private International Law”, 82
Tul. L. Rev. 1645 (2008).
–, “Flexibility and Predictability : The Emergence of Near-Universal Choice of
Law Principles”, in Festschrift Peter Hay 49 (2005).
–, “Losing the Battle but Winning the World : Juenger’s Critique of Interest
Analysis”, in Juenger Special Ed. lix (2005).
–, “Louisiana’s Conflicts Codification : Some Empirical Observations Regarding
Decisional Predictability”, 60 La. L. Rev. 1061 (2000).
–, “Empiricism and Theory in Conflicts Law”, 75 Ind. LJ 509, 2000.
–, “Back to the Past : Anti-Pragmatism in American Conflicts Law”, 48 Mercer
L. Rev. 721 (1997).
–, “Conflicts Pragmatism”, 56 Alb. L. Rev. 883 (1993).
Borchers, P., and J. Zekoll (eds.), International Conflict of Laws for the Third
Millennium : Essays in Honor of Friedrich K. Juenger, 2000.
Borrás, A., et al. (eds.), E Pluribus Unum, Liber Amicorum Georges Droz 541 (1996).
–, “Le droit international privé communautaire : Réalités, problèmes et perspectives
d’avenir”, 317 Recueil des cours 313 (2005).
Bourel, P., “Du rattachement de quelques délits spéciaux en droit international
privé”, 214 Recueil des cours 251 (1990).
Briggs, A., Civil Jurisdiction and Judgments, 6th ed., 2015.
–, Private International Law in English Courts, 2014.
–, The Conflict of Laws, 3rd ed., 2013.
–, Agreements on Jurisdiction and Choice of Law, 2008.
Brilmayer, L., “Hard Cases, Single Factor Theories, and a Second Look at the
Restatement 2d of Conflicts”, 2015 U. Ill. L. Rev. 1969 (2015).
–, “The Role of Substantive and Choice of Law Policies in the Formation and
Application of Choice of Law Rules”, 252 Recueil des cours 9 (1995).
–, “The Other State’s Interests”, 24 Cornell Int’l LJ 233 (1991).
–, “Rights, Fairness, and Choice of Law”, 98 Yale LJ 127 (1989).
–, “Shaping and Sharing in Democratic Theory : Towards a Political Philosophy of
Interstate Equality”, 15 Fla. St. L. Rev. 389 (1987).
–, “Methods and Objectives in the Conflict of Laws : A Challenge”, 35 Mercer L.
Rev. 556 (1984).
–, “Interest Analysis and the Myth of Legislative Intent”, 78 Mich. L. Rev. 392
(1980).
Brilmayer, L., and R. Anglin, “Choice of Law Theory and the Metaphysics of the
Stand-Alone Trigger”, 95 Iowa L. Rev. 1125 (2010).
Brilmayer, L., J. Goldsmith and E. O’Hara O’Connor, Conflict of Laws : Cases and
Materials, 7th ed., 2015.
Brower, A., Libel Tourism and Foreign Libel Lawsuits, 2011.
Bucher, A., “La dimension sociale du droit international privé. Cours général de
droit international privé”, 341 Recueil des cours 9 (2009).
–, “L’ordre public et le but social des lois en droit international privé”, 239 Recueil
des cours 9 (1993).
–, “Sur les règles de rattachement à caractère substantiel”, Liber Amicorum Adolf
Schnitzer 37 (1979).
Burián, L., “Hungarian Private International Law at the End of the 20th Century :
Progress or Regress ?”, in S. Symeonides, Private International Law at the End
of the 20th Century : Progress or Regress ? 263 (2000).
Buxbaum, H. L., “Class Actions, Conflict and the Global Economy”, 21 Ind. J.
Global Legal Stud. 585 (2014).
–, “Mandatory Rules in Civil Litigation : Status of the Doctrine Post-Globalization”,
18 Am. Rev. Int’l Arb. 21 (2007).
–, “Transnational Regulatory Litigation, 46 Va. J. Int’l L. 253 (2006).
–, “Conflict of Economic Laws : From Sovereignty to Substance”, 42 Va. J. Int’l L.
931 (2002).
Calleros, C. R., “Toward Harmonization and Certainty in Choice-of-Law Rules
for International Contracts : Should the U.S. Adopt the Equivalent of Rome I ?”,
28 Wis. Int’l LJ 639 (2011).
Calliess, G.-P. (ed.), Rome Regulations, 2nd ed., 2015.
Calme, S., French Private International Law, 2015.
Calster, G. V., European Private International Law, 2013.
Camara, K., “Costs of Sovereignty”, 107 W. Va. L. Rev. 385 (2005).
Campuzano Diaz, B., M. Czepelak, A. Rodriguez Benot and A. Rodriguez Vazquez
(eds.), Latest Developments in EU Private International Law, 2011.
Caravaca, A., “The Private International Law of the European Community”, in
Festschrift Juenger 23 (2006).
Carballo Leyda, A. (ed.), Asian Conflict of Laws : East and South East Asia, 2015.
Carbone, C. E., “To Be or Not to Be Forgotten : Balancing the Right to Know with
the Right to Privacy in the Digital Age”, 22 Va. J. Soc. Pol’y & L. 525 (2015).
Carrillo Salcedo, A., “Le renouveau du particularisme en droit international privé”,
Carruthers, J., “Party Autonomy in the Legal Regulation of Adult Relationships :
What Place for Party Choice in Private International Law ?”, 61 Int’l & Comp.
LQ 881 (2012).
Cavers, D., The Choice-of-Law Process, 1965.
–,“A Correspondence with Brainerd Currie, 1957-1958”, 34 Mercer L. Rev. 471
(1983).
–, “The Value of Principled Preferences”, 49 Tex. L. Rev. 211 (1971).
–, “Legislative Choice of Law : Some European Examples”, 44 S. Cal. L. Rev. 340
(1971).
–, “Contemporary Conflicts Law in American Perspective”, 131 Recueil des cours
75 (1970).
–, “Some of Ehrenzweig’s Choice-of-Law Generalizations”, 18 Okla. L. Rev. 357
(1965).
–, “Comments on Babcock v. Jackson”, 63 Colum L. Rev. 1219 (1963).
–, “A Critique of the Choice-of-Law Problem”, 47 Harv. L. Rev. 173 (1933).
Chaudhry-Kravitz, A. S., “The New Facially Neutral ‘Anti-Shariah’ Bills :
A Constitutional Analysis”, 20 Wash. & Lee J. Civil Rts. & Soc. Just. 25
(2013).
Cheatham, E., and W. Reese, “Choice of the Applicable Law”, 52 Colum. L. Rev.
959 (1952).
Chen, J., “Australian Private International Law at the End of the 20th Century :
Chen, W., Chinese Civil Procedure and the Conflict of Laws, 2013.
–, “Chinese Private International Law Statute of 28 October 2010”, 12 Ybk. Priv.
Int’l L. 27 (2010).
Childress, D. E., “Comity as Conflict : Resituating International Comity as Conflict
of Laws”, 44 UC Davis L. Rev. 11 (2010).
Chong, A., “The Public Policy and Mandatory Rules of Third Countries in
International Contracts”, 2 J. Priv. Int’l L. 27 (2006).
Clarkson, C. M. V., and J. Hill, The Conflict of Laws, 2011.
Cleveland, S., “Foreign Authority, American Exceptionalism, and the Dred Scott
Case”, 82 Chi.-Kent L. Rev. 393 (2007).
Colangelo, A. J., “What is Extraterritorial Jurisdiction ?”, 99 Cornell L. Rev. 1303
(2014).
–, “International Law in U.S. State Courts : Extraterritoriality and ‘False Conflicts’
of Law”, 48 Int’l Law. 1 (2014).
–, “Jurisdiction, Immunity, Legality, and Jus Cogens”, 14 Chi. J. Int’l L. 53 (2013).
–, “Spatial Legality”, 107 Nw. UL Rev. 69 (2012).
–, “A Unified Approach to Territoriality”, 97 Va. L. Rev. 1019 (2011).
–, “Constitutional Limits on Extraterritorial Jurisdiction : Terrorism and the
Intersection of National and International Law”, 48 Harv. Int’l LJ 121 (2007).
–, “The Legal Limits of Universal Jurisdiction”, 47 Va. J. Int’l L. 149 (2006).
Collier, J., and P. Rogerson, Collier’s Conflict of Laws, 4th ed., 2013.
Collins, H., “Cosmopolitanism and Transnational Private Law”, 8 Eur. Rev. Cont.
L. 311 (2012).
Collins, L., “Comity in Modern Private International Law”, in J. Fawcett (ed.),
Reform and Development of Private International Law 89 (2002).
Collins, L., et al., Dicey, Morris & Collins on the Conflict of Laws, 15th ed., 2012.
Constable, M., “Afterword : Conflicts as a Law of Laws ?”, 71.3 L. & Contemp.
Probs. 343 (2008).
Cook, W., The Logical and Legal Bases of the Conflict of Laws, Cambridge, Mass.
(1942).
–, “An Unpublished Chapter of the Logical and Legal Bases of the Conflict of
Laws”, 37 U. Ill. L. Rev. 418 (1943).
Cooter, R., “Structural Adjudication and the New Law Merchant : A Model of
Decentralized Law”, 14 Int’l Rev. L. & Econ. 215 (1994).
Cordero-Moss, G., International Commercial Contracts : Applicable Sources and
Enforceability, 2014.
–, “Limitations on Party Autonomy in International Commercial Arbitration”, 372
Recueil des cours 129 (2015).
–, “New Trends in the Norwegian Practice on the Choice of Law Applicable to
Contracts”, 57 Scand. Stud. L. 45 (2012).
Corneloup, S., “The Application of Foreign Law in European Private International
Law : Reflections from a French Perspective”, 78 RabelsZ 844 (2014).
Corr, J., “The Frailty of Interest Analysis”, 11 Geo. Mason L. Rev. 299 (2002).
Cox, S., “Substantive Multilateral, and Unilateral Choice of Law Approaches”, 37
Crawford E. B., and J. M. Carruthers, International Private Law – A Scots
Perspective, 4th ed., 2015.
Crawford, E., and J. M. Carruthers, “Connection and Coherence between and among
European Instruments in the Private International Law of Obligations”, 63 Int’l
& Comp. LQ 1 (2014).
Crawford, E. B., and J. M. Carruthers, International Private Law : A Scots
Perspective, 4th ed., 2015.
Cross, J., “The Conduct-Regulating Exception in Modern United States Choice-of-

Law”, 36 Creighton L. Rev. 425 (2003).
Cuniberti, G., “Three Theories of Lex Mercatoria”, 52 Colum. J. Transn’l L. 369
(2014).
Curran, V. G., “Extraterritoriality, Universal Jurisdiction, and the Challenge of
Kiobel v. Royal Dutch Petroleum Co.”, 28 Md. J. Int’l L. 76 (2013).
Currie, B., Selected Essays on the Conflict of Laws, Durham, NC, Duke UP, 1963.
–, “The Disinterested Third State”, 28 Law & Contemp. Probs. 754 (1963).
–, “Notes on Methods and Objectives in the Conflict of Laws”, 1959 Duke LJ 171
(1959).
Currie, B., and H. Schreter, “Unconstitutional Discrimination in the Conflict of
Laws : Privileges and Immunities”, 69 Yale LJ 1323 (1960).
–, “Unconstitutional Discrimination in the Conflict of Laws : Equal Protection”, 28
U. Chi. L. Rev. 1 ( 1960).
Currie, D., H. H. Kay, L. Kramer and K. Roosevelt, Conflict of Laws, Cases,
Comments, Questions, 8th ed., 2010.
Dagan, H., “The Limited Autonomy of Private Law”, 56 Am. J. Comp. L. 809
(2008).
Dalloz, pub., Mélanges en l’honneur d’Hélène Gaudemet-Tallon Gaudemet-Tallon :
Vers de nouveaux équilibres entre ordres juridiques, 2008.
Dane, P., “Whereof One Cannot Speak : Legal Diversity and the Limits of a
Restatement of Conflict of Laws”, 75 Ind. LJ 511 (2000).
–, “Vested Rights, ‘Vestedness’, and Choice of Law”, 96 Yale LJ 1191 (1987).
Danilevich, A., Private International Law in Belarus, 2012.
Davies, M., A. Bell and P. Bereton, Nygh’s Conflict of Laws in Australia, 2010.
De Boer, T. M., “Living Apart Together : The Relationship between Public and
Private International Law”, 57 Neth. Int’l L. Rev. 183 (2010).
–, “Party Autonomy and Its Limitations in the Rome II Regulation”, 9 Ybk. Priv.
Int’l L. 19 (2008).
–, “Prospects for European Conflicts Law in the Twenty-First Century”, in
P. Borchers and J. Zekoll (eds.), International Conflict of Laws for the Third
–, “Facultative Choice of Law : The Procedural Status of Choice-of-Law Rules and
Foreign Law”, 257 Recueil des cours 223 (1996).
–, “The Relation between Uniform Substantive Law and Private International
Law”, in A. S. Hartkamp et al. (eds.), Towards a European Civil Code, 1994.
De Lima Pinheiro, L., “The Methodology and the General Part of the Portuguese
Private International Law Codification : A Possible Source of Inspiration for the
European Legislator ?”, 14 Ybk. Priv. Int’l L. 153 (2013).
– “Choice of Law on Non-Contractual Obligations between Communiterization
and Globalization : A First Assessment of EC Regulation Rome II”, Riv. dir. int.
priv. proc. 5 (2008).
De Nova, R., “Glancing at the Content of Substantive Rules under the Jurisdiction-
Selecting Approach”, 41 Law & Contemp. Prob. 1 (1977).
–, “Historical and Comparative Introduction to Conflict of Laws”, 118 Recueil des
cours 441 (1966).
–, “The First American Book on Conflict of Laws”, 8 Am. J. Leg. Hist. 136 (1964).
Deby-Gérard, F., Le rôle de la règle de conflict dans le règlement des rapports
internationaux, 1973.
Deelen, E. J. Th., “De blinddoek van Von Savigny”, 14 Neth. Int’l L. Rev. 174
(1967).
Dickinson, A., The Rome II Regulation : A Commentary, 2009
–, “Territory in the Rome I and Rome II Regulations”, 1 Lloyd’s Mar. & Comm. LQ
86 (2013).
–, “Third-Country Mandatory Rules in the Law Applicable to Contractual
Obligations : So Long, Farewell, Auf Wiedersehen, Adieu ?”, 3 J. Priv. Int’l L.
53 (2007).
Dickinson, A., T. John and M. Keyes (eds.), Australian Private International Law
for the 21st Century : Facing Outwards, 2014.
Dodge, W. S., “International Comity in American Law”, 115 Colum. L. Rev. 2071
(2015).
–, “The Public-Private Distinction in the Conflict of Laws”, 18 Duke J. Comp. &
Int’l L. 371, 2008
–, “Extraterritoriality and Conflict-of-Laws Theory : An Argument for Judicial
Unilateralism”, 39 Harv. Int’l LJ 101, 1998.
Dogauchi, M., “New Private International Law of Japan : An Overview”, 50 Japan.
Ann. Int’l L. 3 (2007).
–, Dogauchi, M., “Four-Step Analysis of Private International Law”, 315 Recueil
des cours 9 (2005).
Dolinger, J., Private International Law in Brazil, 2012.
–, “The Vision of the World in the Opus of Friedrich Juenger”, in Juenger, Special
ed., liii, 2005.
–,“Evolution of Principles for Resolving Conflicts in the Field of Contracts and
Torts”, 283 Recueil des cours 189 (2000).
Dornis, T. W., “Contribution and Indemnification among Joint Tortfeasors in Multi-
State Conflict Cases : A Study of Doctrine and the Current Law in the US and
under the Rome II Regulation”, 4 J. Priv. Int’l L. 237 (2008).
–, “When in Rome, Do as the Romans Do ? A Defense of the Lex Domicilii
Communis in the Rome-II-Regulation”, 4.1 Eur. Legis. F. 152 (2007).
Drahozal, C., “Contracting out of National Law : An Empirical Look at the New
Law Merchant”, 80 Notre Dame L. Rev. 523 (2005).
Dreyzin De Klor, A., Private International Law in Argentina (2011).
Droz, G., “Regards sur le droit international privé comparé”, 229 Recueil des cours
9 (1991).
Dubinsky, P. R., “Human Rights Law Meets Private Law Harmonization : The
Coming Conflict”, 30 Yale J. Intl L. 211 (2005).
Dubler, C., Les clauses d’exception en droit international privé, 1983.
Ebrahimi, S., “An Overview of the Private International Law of Iran : Theory
and Practice,” 12 Ybk. Priv. Int’l L. 503 (2010), 13 Ybk. Priv. Int’l L. 413
(2011).
Eeckhout, V. V. D., “Promoting Human Rights within the Union : The Role of
European Private International Law, 14 Eur. LJ 105 (2008).
Ehrenzweig, A., Private International Law, 1967.
–, A Treatise on the Conflict of Laws, 1962.
–, “Choice of Law in California – A ‘Prestatement’ ”, 21 UCLA L. Rev. 781 (1974).
–, “The Value of Principled Preferences”, 49 Tex. L. Rev. 236 (1971).
–, “Specific Principles of Private Transnational Law”, 124 Recueil des cours 167
(1968).
–, “A Counter-Revolution in Conflicts Law ? From Beale to Cavers”, 80 Harv. L.
Rev. 377 (1966).
–, “A Proper Law in a Proper Forum : A ‘Restatement’ of the ‘Lex Fori Approach’ ”,
18 Okla. L. Rev. 340 (1965).
–, “The Second Conflicts Restatement : A Last Appeal for Its Withdrawal”, 113 U.
Pa. L. Rev. 1230 (1965).
–, “Choice of Law : Current Doctrine and ‘True Rules’ ”, 49 Calif. L. Rev. 240
(1961).
–, “The Lex Fori-Basic Rule in the Conflict of Laws”, 58 Mich. L. Rev. 637 (1960).
Einhorn, T., Private International Law in Israel, 2nd ed., 2012.
Einhorn, T., and K. Siehr (eds.), Intercontinental Cooperation through Private
International Law : Essays in Memory of Peter Nygh, The Hague, 2004.
Ely, J., “Choice of Law and the State’s Interest in Protecting its Own”, 23 Wm. and
Mary L. Rev. 173 (1981).
Emilianides, A. C., S. Laulhé Shaelou and A. Solomou, “Private International Law :
Cyprus”, in Int’l Encycl. Priv. Int’l L. (2015).
Ena, M., “Choice of Law and Predictability of Decisions in Products Liability

Cases”, 34 Fordham Urb. LJ 1417 (2007).
Ernst, U., “The Polish Private International Law Act of 2011 – National
Recodification in Times of Exercise of Supranational Competences”, 76 RabelsZ
597 (2012).
Esplugues Mota, C., “Harmonization of Private International Law in Europe and
Application of Foreign Law : The ‘Madrid Principles’ of 2010”, 13 Ybk. Priv.
Int’l L. 273 (2011).
Esplugues Mota, C., and M. Lorenzo Segrelles, “Spanish Judicial Decisions in
Private International Law, 2006”, 12 Spanish Ybk. Int’l L. 265 (2008).
Esplugues Mota, C., J. L. Iglesias Buhigues and G. P. Moreno, Derecho internacional
privado, 9th ed., 2015.
Esplugues Mota, C., J. L. Iglesias Buhigues and G. Palao (eds.), Application of
Foreign Law, 2011.
Estin, A. L., “Foreign and Religious Family Law : Comity, Contract, and the
Constitution”, 41 Pepp. L. Rev. 1029 (2014).
Evrigenis, D., Idiotikon Diethnes Dikaion, 1968.
–, “Tendances doctrinales actuelles en droit international privé”, 118 Recueil des
cours 313 (1966).
Fallon, M., and J. Meeusen, “Belgian Private International Law at the End of the
20th Century : Progress or Regress ?”, in S. Symeonides, Private International
Law at the End of the 20th Century : Progress or Regress ? 109 (2000).
Fallon, M., “Les règles d’applicabilité en droit international privé”, Mélanges Van
der Elst 285, Brussels, 1986.
Fallon, M., P. Kinsch and C. Kohler (eds.), Building European Private International
Law : Twenty Years’ Work by GEDIP, 2011.
Fassberg, C. W., “Realism and Revolution in Conflict of Laws : In with a Bang and
Out with a Whimper”, 163 U. Pa. L. Rev. 1919 (2015).
Fauvarque-Cosson, B., “Unifying and Harmonizing Substantive Law and the Role
of Conflict of Laws”, 59 Am. J. Comp. L. 591 (2011).
–, “Comparative Law and Conflict of Laws : Allies or Enemies ? New Perspectives
on an Old Couple”, 49 Am. J. Comp. L. 407 (2001).
Fawcett, J. J., “The Impact of Article 6 (1) of the ECHR on Private International
Law”, 56 Int’l & Comp. LQ 1 (2007).
–, “Cross-Fertilization in Private International Law”, 53 Current Leg. Prob. 303
(2000).
–, “Products Liability in Private International Law : A European Perspective”, 238
–, “Evasion of Law and Mandatory rules in Private International Law”, 49
Cambridge LJ 44 (1990).
–, “Is American Governmental Interest Analysis the Solution to English Tort Choice
of Law Problems ?”, 31 Int’l & Comp. LQ 31 (1982).
Fawcett J. J., and J. M. Carruthers, Cheshire, North & Fawcett, Private International
Law 17, 14th ed., 2008.
Felix, R. L., and R. U. Whitten, American Conflicts Law, 6th ed., 2015.
Felix, R. L., “Leflar in the Courts : Judicial Adoptions of Choice-Influencing
Considerations”, 52 Ark. L. Rev. 35 (1999).
Fellmeth, A., “U.S. State Legislation to Limit Use of International and Foreign
Law”, 106 Am. J. Int’l L. 107 (2012).
Fentiman, R., “Choice of Law in Europe : Uniformity and Integration”, 82 Tul. L.
Rev. 2021 (2008).
–, “Foreign Law and Forum Conveniens”, in Law and Justice in a Multistate World :
Essays in Honor of Arthur T. von Mehren, 275, J. Nafziger and S. Symeonides
(eds.) (2002).
–, “English Private International Law at the End of the 20th Century : Progress
or Regress ?”, in S. Symeonides, Private International Law at the End of the
20th Century : Progress or Regress ?, 165 (2000).
Feraci, O., “Party Autonomy and Conflict of Jurisdictions in the EU Private

International Law on Family and Succession Matters”, 16 Ybk. Priv. Int’l L. 105
(2014-2015).
Fernández Arroyo, D., La codificación del derecho internacional privado en
América Latina, Madrid, 1994.
–, “A New Autonomous Dimension for the Argentinian Private International Law
System”, 16 Ybk. Priv. Int’l L. 411 (2014-2015).
–, “Private International Law and Comparative Law : A Relationship Challenged by
International and Supranational Law”, 11 Ybk Priv. Int’l L. 31 (2009).
–, “Current Approaches towards Harmonization of Consumer Private International
Law in the Americas”, 58 Int’l & Comp. LQ 411 (2009).
Ferrari, F. (ed.), Rome I Regulation : Pocket Commentary, 2014.
–, “From Rome to Rome via Brussels : Remarks on the Law Applicable to
Contractual Obligations Absent a Choice by the Parties”, 73 RabelsZ 750, 2009.
Ferrari, F., and S. Leible, Rome I Regulation : The Law Applicable to Contractual
Obligations in Europe (2009).
Ferrer-Correia, A., “Les problèmes de codification en droit international privé”, 145
Recueil des cours, 1975.
Figueroa-Torres, M., “Recodification of Civil Law in Puerto Rico : A Quixotic
Pursuit of the Civil Code for the New Millennium”, 23 Tul. Eur. Civ. LF 143
(2008).
Fiorini, A., “Rome III – Choice of Law in Divorce : Is the Europeanization of Family
Law Going Too Far ?”, 22 Int’l J. L. Pol’y & Fam. 178 (2008).
–, “The Codification of Private International Law in Europe – Could the Community
Learn from the Experience of Mixed Jurisdictions ?”, 23 Tul. Eur. Civ. LF 89
(2008).
–, “The Evolution of European Private International Law”, 57 Int’l & Comp. LQ
969 (2008).
–, “The Codification of Private International Law : The Belgian Experience”, 54
ICLQ 499 (2005).
Flessner, A., Interessenjurisprudenz im Internationalen Privatrecht, 1990.
Florey, K., “State Courts, State Territory, State Power : Reflections on the
Extraterritoriality Principle in Choice of Law and Legislation”, 84 Notre Dame
L. Rev. 1057 (2009).
Fons, M. P., “Commercial Choice of Law in Context : Looking Beyond Rome”, 78
Mod. L. Rev. 241 (2015).
Forsyth, C., “Certainty versus Uniformity : Renvoi in the Context of Movable
Property”, 6 J. Priv. Int’l L. 637 (2010).
Forsyth, C. F., Private International Law : The Modern Roman-Dutch Law Including
the Jurisdiction of the High Courts, 2012.
Fournier, P., “Borders and Crossroads : Comparative Perspectives on Minorities and
Conflict of Laws”, 25 Emory Int’l L. Rev. 987 (2011).
Francescakis, P., La pensée des autres en droit international privé, 1985.
–, La théorie du renvoi et les conflits des systèmes en droit international privé,
1958.
–, “ ‘Lois d’application immédiate’ et règles de conflits”, 3 Riv. dir. int. priv. proces.
699 (1966).
–, “Quelques précisions sue les ‘lois d’application immédiate’ et leurs rapports
avec les règles de conflit de lois”, 55 Rev. critique dr. int’l priv. 1 (1955).
Franzina, P., “Bartolus de Sassoferrato”, in J. Basedow et al. (eds.), Encyclopedia
of PIL, 2017.
Fresnedo de Aguirre, C., and D. P. Fernandez Arroyo, “A Quick Latin American
Look at the Rome II Regulation”, 9 Ybk. Priv. Int’l L. 193 (2008).
Gallagher, E., “A House Is Not, Necessarily a Home : A Discussion of the Common
Law Approach to Habitual Residence”, 47 NYU J. Int’l L. & Pol. 463 (2015).
Gan, Y., “Mandatory Rules in Private International Law in the People’s Republic of
China”, 14 Ybk. Priv. Int’l L. 305 (2013).
Gannagé, P., “L’égalité de traitement entre la loi du for et la loi étrangère dans les
codifications nationales de droit international privé”, 63 Ann. inst. dr. int’l. 293
(1990).
Garcimartin Alferez, F. J., ‘The Rome I Regulation : Much Ado About Nothing ?”,
2008 :2 Eur. Legis. F. 61 (2008).
–, “The Rome II Regulation : On the Way towards a European Private International
Code”, 2007 :3 Eur. Legis. F. 77 (2007).
Garnett, R., Substance and Procedure in Private International Law, 2012.
Garnett, R., and M. Richardson, “Libel Tourism or Just Redress ? Reconciling the,
English Right to Reputation with the, American Right to Free Speech in Cross-
Border Libel Cases”, 5 J. Priv. Int’l L. 471 (2009).
Gaudemet-Tallon, H., “Le pluralisme en droit international privé : Richesses et
faiblesses, le funambule et l’arc-en-ciel. Cours général”, 312 Recueil des cours
9 (2005).
–, “L’utilisation des règles de conflit à caractère substantiel dans les conventions
internationales, l’exemple des Conventions de La Haye”, in Mélanges en l’honneur
d’Yvon Loussouarn 181 (1994).
Gevurtz, F. A., “Determining Extraterritoriality”, 56 Wm. & Mary L. Rev. 341
(2014).
Giunchi, E. (ed.), Muslim Family Law in Western Courts, 2014.
Glenn, P., “La conciliation de lois : Cour général de droit international privé”, 364
–, “Codification of Private International Law in Quebec”, 60 RabelsZ 231 (1996).
Goldsmith, J., and A. Sykes, “Lex Loci Delictus and Global Economic Welfare :
Spinozzi v. ITT Sheraton Corp.”, 120 Harv. L. Rev. 1137 (2007).
González Campos, J., “Diversification, spécialisation et matérialisation des règles
de droit international privé”, 287 Recueil des cours 9 (2000).
Gotanda, J. Y., “Damages in Private International Law”, 326 Recueil des cours 73
(2007).
Gothot, P., “Phocion Francescakis et ‘La pensée des autres’ ”, Rev. critique 711
(1987).
–, “Le renouveau de la tendance unilatérale en droit international privé”, 60 Rev.
critique dr. int’l priv. 1, 209, 415 (1971).
Gottesman, M., “Adrift in the Sea of Indeterminacy”, 75 Ind. LJ 527 (2000).
–, “Draining the Dismal Swamp : The Case for Federal Choice of Law Statutes”,
80 Geo. LJ 1 (1991).
Gottschalk, E., R. Michaels, G. Ruhl and J. von Hein (eds.), Conflict of Laws in a
Globalized World, 2007.
Govindaraj, V. C., The Conflict of Laws in India : Inter-Territorial and Inter-
Personal Conflict, 2011.
Grammatikaki-Alexiou, A., Delictual Obligations in Private International Law (in
Greek), 1987.
–, “Multiculturalism : Does It Affect Contemporary International Transactions ?”,
62 Rev. hellénique dr. int’l 553 (2009).
–, “Substantive Conflicts Rules and Connecting Factors of a Substantive Character :
Two Versions of Methodological Pluralism”, Rev. hellenique droit europ. 299
(1986).
Grammatikaki-Alexiou, A., Z. Papassiopi-Passia and E. Vassilakakis, Idiotikon
Diethnes Dikaion, 3rd ed., 2002.
Gray, A., “Loss Distribution Issues in Multinational Tort Claims : Giving Substance
to the Substance”, 4 J. Priv. Int’l L. 270 (2008).
–, “Flexibility in Conflict of Laws Multistate Tort Cases : The Way Forward in
Australia”, 23 U. Queensl. LJ 435 (2004).
Greene, J., “Choice of Law in Tort – The Song that Never Ends”, 26 Fed., L. Rev.
349 (1998).
Grolimund, P., A. Schnyder and N. Mosimann, Private International Law in
Switzerland, 2013.
Guedj, T., “The Theory of the Lois de Police, A Functional Trend in Continental
Private International Law : A Comparative Analysis with Modern American
Theories”, 39 Am. J. Comp. L. 661 (1991).
Gugu Bushati, A., “The Albanian Private International Law of 2011”, 15 Ybk. Priv.
Int’l L. 509 (2013-2014).
Guterman, S. L., “The Principle of the Personality of Law in the Early Middle Ages :
A Chapter in the Evolution of Western Institutions and Ideas”, 21 U. Miami L.
Rev. 259 (1966).
Gutzwiller, M., Geschichte des Internationalprivatrechts : Von den Anfängen bis zu
den großen Privatrechtskodifikationen, 1977.
–, “Le développement historique du droit international privé”, 4 Recueil des cours
348 (1929).
Gutzwiller, P., “Von Ziel und Methode des IPR”, Ann. suisse droit int. 161
(1968).
Hague Conference on Private International Law, A Commitment to Private
International Law : Essays in Honour of Hans van Loon, 2013.
Hamza, G., “Some Reflections on the History of Private International Law”, 34 Act.
Jur. Acad. Sci. Hung. 195 (1992).
Hanotiau, B., “The American Conflicts Revolution and European Tort Choice-of-
Law Thinking”, 30 Am. J. Comp. L. 73 (1982).
Harding, M., Conflict of Laws, 5th ed., 2014.
–, “The Harmonisation of Private International Law in Europe : Taking the
Character out of Family Law ?”, 7 J. Priv. Int’l L. 203 (2011).
Harris, J., “Mandatory Rules and Public Policy under the Rome I Regulation”,
in F. Ferrari and S. Leible (eds.), Rome I Regulation : The Law Applicable to
Contractual Obligations in Europe 269 (2009).
–, “Choice of Law in Tort – Blending in with the Landscape of the Conflict of
Laws ?”, 61 Mod. L. Rev. 33 (1998).
Hartley, T. C., The Modern Approach to Private International Law. International
Litigation and Transactions from a Common-Law Perspective. General Course
on Private International Law, 319 Recueil des cours 9 (2006).
–, “ ‘Libel Tourism’ and Conflict of Laws”, 59 Int’l & Comp. LQ 25 (2010).
–, “Mandatory Rules in International Contracts : The Common Law Approach”,
Hatzimihail, N. E., Preclassical Conflict of Laws, 2015.
–, “The Many Lives – and Faces – of Lex Mercatoria : History as Genealogy in
International Business Law”, 71 Law & Contemp. Probs. 169 (2008).
–, “Bartolus and the Conflict of Laws”, 60 Rev. hellénique dr. int’l 11 (2007).
–, “Pages of History : Friedrich Juenger and the Historical Consciousness of
Modern Private International Law”, in Festschrift Juenger 81 (2006).
Hay, P., Selected Essays on Comparative Law and Conflict of Laws, 2015.
–, “European Conflicts Law after the American ‘Revolution’ – Comparative Notes”,
2015 U. Ill. L. Rev. 2053 (2015).
–, “The Use and Determination of Foreign Law in Civil Litigation in the United
States”, 62 Am. J. Comp. L. 213 (2014).
–, “Contemporary Approaches to Non-Contractual Obligations in Private
International Law, Conflict of Laws and the European Community’s ‘Rome II’
Regulation”, 4.1 Eur. Legis. F. 137 (2007).
–,“From Rule-Orientation to ‘Approach’ in German Conflicts Law : The Effect of
the 1986 and 1999 Codifications”, 47 Am. J. Comp. L. 633 (1999).
–, “Flexibility versus Predictability and Uniformity in Choice of Law : Reflections
on Current European and United States Conflicts Law”, 226 Recueil des cours
281 (1991).
–, “Full Faith and Credit and Federalism in Choice of Law”, 34 Mercer L. Rev. 709
(1983).
–, “Reflections on Conflict-of-laws Methodology : A Dialogue”, 32 Hastings LJ
1644 (1981).
Hay, P., and R. Ellis, “Bridging the Gap between Rules and Approaches in Tort
Choice of Law in the United States : A Survey of Current Case Law”, 27 Int’l
Law. 369 (1993).
Hay, P., P. Borchers and S. Symeonides, Conflict of Laws, 5th ed., 2010.
Hay, P., et al. (eds.), Resolving International Conflicts : Liber Amicorum Tibor
Várady, 2009.
Hay, P., R. Weintraub and P. Borchers, Conflict of Laws : Cases and Materials,
14th ed., 2013.
Hayakawa, Y., “New Private International Law of Japan : General Rules on
Contracts”, 50 Japan. Ann. Int’l L. 25 (2007).
Hayton, D., “Trusts in Private International Law”, 366 Recueil des cours 9
(2014).
Heini, A., “Neuere Strömungen im amerikanischen internationalen Privatrecht”, 19
Schweizerisches Jahrbuch für Internationales Recht 31 (1962).
Hellner, M., “Third Country Overriding Mandatory Rules in the Rome I Regulation :
Old Wine in New Bottles ?”, 5 J. Priv. Int’l L. 447 (2009).
Henrich, D., “Private Autonomy, Party Autonomy : Family Law Future Perspectives”,
79 RabelsZ 752 (2015).
Herzog, P., “The ‘Conflict of Laws Revolution’ in New York, and Where Did It
Leave Us”, 50 Syr. L. Rev. 1279 (2000).
–, “Constitutional Limits on Choice of Law”, 234 Recueil des cours 239 (1992).
Hill, A., “For a Third Conflicts Restatement – But Stop Trying to Reinvent the
Wheel”, 75 Ind. LJ 535 (2000).
–, “After the Big Bang : Professor Sedler’s Remaining Dilemma”, 38 Wayne L. Rev.
1471 (1992).
–, “Governmental Interest and the Conflict of Laws – A Reply to Professor Currie”,
27 U. Chi. L. Rev. 463 (1960).
Hiller, L., “The ‘Most Significant Relationship’ Test of the Second Restatement of
Conflicts and Its Effect Outside the United States in the Area of Torts”, 12 NY
Int’l L. Rev. 55 (1999).
Hoffheimer, M. H., “California’s Territorial Turn in Choice of Law”, 67 Rutgers
U. L. Rev. 167 (2015).
Hohloch, G., “Place of Injury, Habitual Residence, Closer Connections and
Substantive Scope – The Basic Principles”, 9 Ybk. Priv. Int’l L. 1 (2008).
Hook, M., “The Concept of Modal Choice of Law Rules”, 11 J. Priv. Int’l L. 185
(2015).
Horowitz, H., “The Law of Choice of Law in California – A Restatement”, 21 UCLA
L. Rev. 719 (1974).
–, “Toward a Federal Common Law of Choice of Law”, 14 UCLA L. Rev. 1191
(1967).
Huang, J., and H. Du, “Chinese Judicial Practice in Private International Law :
2003”, 6 Chinese J. Int’l L. 227 (2007).
Huber, P., Rome II Regulation : Pocket Commentary, 2011.
Huber, P., and M. Illmer, “International Product Liability : A Commentary on
Article 5 of the Rome II Regulation”, 9 Ybk. Priv. Int’l L. 31 (2008).
Hughes, D., “The Insolubility of Renvoi and its Consequences”, 6 J. Priv. Int’l L.
195 (2010).
Huo, Z., “Reshaping Private International Law in China : The Statutory Reform of
Tort Conflicts”, 5 J. of East Asia & Int’l L. 93 (2012).
Hylton, K. N., “Torts and Choice of Law : Searching for Principles”, 56 J. Legal
Educ. 551 (2006).
Illmer, M., “The New European Private International Law of Product Liability :
Steering through Troubled Waters”, 73 RabelsZ 269 (2009).
Jacquet, J.-M., “La fonction supranationale de la règle de conflit de loi”, 292 Recueil
des cours 47 (2001).
Janger, E. J., “Reciprocal Comity”, 46 Tex. Int’l LJ 441 (2011).
–, “Virtual Territoriality”, 48 Col. J. Transnat’l L. 401 (2010).
Jansen N., and R. Michaels, “Private Law beyond the State ? Europeanization,
Globalization, Privatization”, 54 Am. J. Comp. L. 843 (2006).
Jansen, N., and R. Michaels, “Beyond the State ? Rethinking Private Law :
Introduction to the Issue”, 56 Am. J. Comp. L. 527 (2008).
Jayme, E., Methoden der Konkretisierung des ordre public im Internationalen
Privatrecht, Heidelberg, 1989.
–, “Party Autonomy in International Family and Succession Law : New Tendencies”,
11 Ybk Priv. Int’l L. 1 (2009).
–, “Le droit international privé du nouveau millénaire : La protection de la personne
humaine face à la globalisation”, 282 Recueil des cours 9 (2000).
–, “Identité culturelle et intégration : Le droit international privé postmoderne”, 251
–, “The American Conflicts Revolution and Its Impact on European Private
International Law”, in Forty Years On : The Evolution of Postwar Private
International Law in Europe, Centrum voor Buitenlands Recht en Internationaal
Privaatrecht Universiteit van Amsterdam, 15 (1992).
–, “Considérations historiques et actuelles sur la codification du droit international
–, “Neue Kodifikation des Internationalen Privatrechts in Louisiana”, IPRax. 80
(1993).
Jessel-Holst, C., “The Bulgarian Private International Law Code of 2005,” 9 Ybk.
Priv. Int’l L. 375 (2008).
Jessurun d’Oliveira, H. U., De ruïne van een paradigma : De konfliktregel, 1976.
Joerges, C., “Sozialstaatlichkeit in Europe ? A Conflict of Laws Approach to the
Law of the EU and the Proceduralisation of Constitutionalisation”, 10 Germ. LJ
335 (2009).
–, “Vorüberlegungen zu einer Theorie des internationalen Wirtschaftsrechts”, 43
RabelsZ 6 (1979).
–, Zum Functionswandel des Kollisionsrecht, Die “Governmental Interest Ana-
lysis” und die “Krise des Internationalen Privatrechts”, 1971.
Johns, F., “Performing Party Autonomy”, 71.3 L. & Contemp. Probs. 243
(2008).
Juenger, F., Choice of Law and Multistate Justice, Special ed., 2005.
–, Selected Essays on the Conflict of Laws, Ardsley, NY, 2001.
–, Choice of Law and Multistate Justice, 1993.
–, “How Do You Rate a Century ?”, 37 Willamette L. Rev. 89 (2000).
–, “A Third Conflicts Restatement ?”, 75 Ind. LJ 403 (2000).
–, “Choice of Law : How It Ought Not to Be”, 48 Mercer L. Rev. 757 (1997).
–, “Contract Choice of Law in the Americas”, 45 Am. J. Comp. L. 195 (1997).
–, “The Complex Litigation Project’s Tort Choice-of-Law Rules”, 54 La. L. Rev.
907 (1994).
–, “What’s Wrong with Forum Shopping ?”, 16 Sydney L. Rev. 5 (1994).
–, “Babcock v. Jackson Revisited : Judge Fuld’s Contribution to American Conflicts
Law”, 56 Alb. L. Rev. 727 (1993).
–, “Governmental Interests and Multistate Justice : A Reply to Professor Sedler”, 24
UC Davis L. Rev. 227 (1990).
–, “Conflict of Laws : A Critique of Interest Analysis”, 32 Am. J. Comp. L. 1 (1984).
–, “Robert A. Leflar’s Contribution to American Conflicts Law”, 31 SC L. Rev. 413
(1980).
–, “Trends in European Conflicts Law”, 60 Cornell L. Rev. 969 (1975).
–, “Choice of Law in Interstate Torts”, 118 U. Pa. L. Rev. 202 (1969).
Kadens, E., “The Myth of the Customary Law Merchant”, 90 Texas L. Rev. 1153
(2012).
Kadner Graziano, T., “The Law Applicable to Cross-Border Damage to the
Environment. A Commentary on Article 7 of the Rome II Regulation”, 9 Ybk.
Priv. Int’l L. 71 (2008).
–, “The Rome II Regulation and the Hague Conventions on Traffic Accidents and
Product Liability – Interaction, Conflicts and Future Perspectives”, 2008 Nederl.

IPR. 425 (2008).
Kahn-Freund, O., “General Problems of Private International Law”, 143 Recueil des
cours 139 (1974).
–, “Delictual Liability and the Conflict of Laws”, 124 Recueil des cours 1 (1968).
Kamenova, T., “Different Legal Cultures and Global Judicialization at the End of
the 20th and the Beginning of the 21st Century”, 62 Rev. hellénique dr. int’l 617
(2009).
Kaminsky, C., “The Rome II Regulation : A Comparative Perspective on Federaliz-
ing Choice of Law”, 85 Tul. L. Rev. 55 (2010).
Kanzaki, T., “New Private International Law of Japan : Persons”, 50 Japan. Ann.
Int’l L. 15 (2007).
Karayanni, M. M., Conflicts in a Conflict : A Conflict of Laws Case Study on Israel
and the Palestinian Territories, 2014.
Kassir, W., Réflexions sur le renvoi en droit international privé comparé, 2002.
Kay, H. H, “Remembering Brainerd Currie”, 2015 U. Ill. L. Rev. 1961 (2015).
–, “Currie’s Interest Analysis in the 21st Century : Losing the Battle, but Winning
the War”, 37 Willamette L. Rev. 123 (2001).
–, “A Defense of Currie’s Governmental Interest Analysis”, 215 Recueil des cours
9 (1989).
–, “Chief Justice Traynor and Choice of Law Theory”, 35 Hastings LJ 747 (1984).
–, “Theory into Practice : Choice of Law in the Courts”, 34 Mercer L. Rev. 521
(1983).
Kay, H. H., L. Kramer and K. Roosevelt, Conflict of Laws : Cases, Comments, Ques-
tions, 9th ed., 2013.
Kegel G., and K. Schurig, Internationales Privatrecht, 9th ed., 2004.
Kegel, G., “Story and Savigny”, 37 Am. J. Comp. L. 39 (1989).
–, “Paternal Home and Dream Home : Traditional Conflict of Laws and the
American Reformers”, 27 Am. J. Comp. L. 615 (1979).
–, “Vaterhaus und Traumhaus : Herkömmliches internationales Privatrecht und
Hauptthesen der amerikanischen Reformer”, in O. Sandrock and W. de Gruyte
(eds.), Festschrift für Günther Beitzke, 551 (1979).
–, “The Crisis of Conflict of Laws”, 112 Recueil des cours 91 (1964).
–, “Begriffs- und Interessenjurisprudenz im internationalen Privatrecht”, in
M. Gerwig et al. (eds.), Festschrift Hans Lewald 259 (1953).
Kerstin, S., Application of Mandatory Rules in the Private International Law of
Contracts, 2010.
Kessedjian, C., “Uniformity v. Diversity in Law in a Global World : The Example of
Commercial and Procedural Law”, 61 Rev. hellénique dr. int’l 319 (2008).
–, “Codification du droit commercial international en droit international privé”, 300
–, “La codification privé”, in A. Borrás et al. (eds.), E Pluribus Unum – Liber
Amicorum G. Droz, 135 (1996).
–, “Le passé et l’avenir du droit international privé européen dans le cadre de
l’intégration de l’Union européene”, 4 Rev. des affaires européennes 411 (2001-
2002).
Keyes, M., “Statutes, Choice of Law, and the Role of Forum Choice”, 4 J. Priv. Int’l
L. 1 (2008).
Kiestra, L. R., The Impact of the European Convention on Human Rights on Private
International Law (2014).
Kim, E.-J. K., “Islamic Law in American Courts : Good, Bad, and Unsustainable
Uses”, 28 Notre Dame JL Ethics & Pub. Pol’y 287 (2014).
Kinsch, P., “Private International Law Topics before the European Court of Human
Rights – Selected Judgments and Decisions, 2010-2011”, 13 Ybk. Priv. Int’l L.
37 (2011).
–, “Droits de l’homme, droits fondamentaux et droit international privé”, 318
Kirgis, F.L., “Disentangling Choice of Law for Torts and Contracts”, 72 Wash. &
Lee L. Rev. Online 71 (2015).
Knop, K., R. Michaels and A. Riles, “Transdisciplinary Conflict of Laws : Foreword”,
71.3 L. & Contemp. Probs. 1 (2008).
Kobayashi, B., and L. Ribstein, “The Non-Uniformity of Uniform Laws”, 35 J.
Corp. L. 327 (2010).
Kokkini-Iatridou, D., Les clauses d’exception en matière de conflits de lois et de
conflits de juridictions – ou le principe de proximité, 1994.
Kono, T., Efficiency in Private International Law, 2014.
Korn, H., “Big Cases and Little Cases : Babcock in Perspective”, 56 Alb. L. Rev.
933 (1993).
–, “The Choice-of-Law Revolution : A Critique”, 83 Colum. L. Rev. 772 (1983).
Kostić-Mandić, M., “The New Private International Law Act of Montenegro”, 16
Ybk. Priv. Int’l L. 429 (2014-2015).
Kozyris, P. J., “Rome II : Tort Conflicts on the Right Track ! A Postscript to Symeon
Symeonides’ ‘Missed Opportunity’ ”, 56 Am. J. Comp. L. 471 (2008).
–, “Conflicts Theory for Dummies : Après le Deluge, Where Are We on Producers
Liability ?”, 60 La. L. Rev. 1161 (2000).
–, “The Conflicts Provisions of the ALI’s Complex Litigation Project : A Glass Half
Full ?”, 54 La. L. Rev. 953 (1994).
–, “Values and Methods in Choice of Law for Products Liability : A Comparative
Comment on Statutory Solutions”, 38 Am. J. Comp. L. 475 (1990).
–, “Interest Analysis Facing Its Critics”, 46 Ohio St. LJ 569 (1985).
Kramer, L., “Choice of Law in Complex Litigation”, 71 NYU L. Rev. 547 (1996).
–, “On the Need for a Uniform Choice of Law Code”, 89 Mich. L. Rev. 2134 (1991).
–, “More Notes on Methods and Objectives in the Conflict of Laws”, 24 Cornell
Int’l LJ 245 (1991).
–, “Return of the Renvoi”, 66 NYU L. Rev. 979 (1991).
–, “Rethinking Choice of Law”, 90 Colum. L. Rev. 277 (1990).
–, “The Myth of the ‘Unprovided For’ Case”, 75 Va. L. Rev. 1045 (1989).
–, “Interest Analysis and the Presumption of Forum Law”, 56 U. Chi. L. Rev. 1301
(1989).
Kramer, X., “The Rome II Regulation on the Law Applicable to Non-Contractual
Obligations : The European Private International Law Tradition Continued”. 2008
Nederl. IPR. 414 (2008).
Kreuzer, K., “Clash of Civilizations and Conflict of Laws”, 62 Rev. hellénique dr.
int’l 629 (2009).
Kronke, H., “Transnational Commercial Law and Conflict of Laws : Institutional
Co-operation and Substantive Complementarity”, 369 Recueil des cours 9 (2013).
Kronstein, H., “Crisis of ‘Conflict of Laws’ ”, 37 Geo. LJ 483 (1948-1949).
Kropholler, J., and J. von Hein, “From Approach to Rule-Orientation in American
Tort Conflicts”, in J. Nafziger and S. Symeonides (eds.), Law and Justice in a
Multistate World : Essays in Honor of Arthur T. von Mehren 317 (2002).
Kuipers, J., “Cartesio and Grunkin Paul : Mutual Recognition as a Vested Rights
Theory Based on Party Autonomy in Private Law”, 2 Eur. J. Leg. Stud. 66 (2009).
Kuipers, J.-J., EU Law and Private International Law : The Interrelationship in
Contractual Obligations, 2011.
–, “Bridging the Gap : The Impact of the EU on the Law Applicable to Contractual
Obligations”, 76 RabelsZ 562 (2012).
Lagarde, P., “Le principe de proximité dans le droit international privé”, 196 Recueil
des cours 9 (1986).
Lainé, A., Introduction au droit international privé contenant une étude historique
et critique de la théorie des statuts, 1888.
Lalive, P., “Tendances et méthodes en droit international privé”, 155 Recueil des
cours 1 (1977).
Lando, O., “Review of S. Symeonides, Codifying Choice of Law around the World.
An International Comparative Analysis”, 52 Common Mkt. L. Rev. 1158 (2015).
–, “New American Choice-of-Law Principles and the European Conflict of Laws of
Contracts”, 30 Am. J. Comp. L. 19 (1982).
Lando, O., and P. Nielsen, “The Rome I Regulation,” 45 Common Mkt. L. Rev. 45
(2008).
Laycock, D., “Equal Citizens of Equal and Territorial States : The Constitutional
Foundations of Choice of Law”, 92 Colum. L. Rev. 249 (1992).
Lebedev, S., “New Russian Regulation on Private International Law”, 4 Ybk. Priv.
Int’l L. 117 (2002).
Leeming, M., Resolving Conflict of Laws, 2011.
Leflar, R., “The Nature of Conflicts Law”, 81 Colum. L. Rev. 1080 (1981).
–, “Choice of Law : A Well-Watered Plateau”, 41 Law and Contemp. Prob. 10,
1977.
–, “Choice-of-Law Statutes”, 44 Tenn. L. Rev. 951 (1977).
–, “The ‘New’ Choice of Law”, 21 Am. UL Rev. 457 (1972).
–, “Choice-Influencing Considerations in Conflicts Law”, 41 NYU L. Rev. 367
(1966).
–, “Conflicts of Law : More on Choice Influencing Considerations”, 54 Calif. L.
Rev. 1584 (1966).
Leflar, R., L. McDougal, and R. Felix, American Conflicts Law, 4th ed., 1986.
Lehmann, M., “Liberating the Individual from Battles between States – Justifying
Party Autonomy in Conflict of Laws”, 41 Vand. J. Transn’l L. 381 (2008).
–, “What’s in a Name ? Grunkin-Paul and Beyond”, 10 Ybk. Priv. Int’l L. 135
(2008).
Leible, S., “Private International Law and Vertical Competition between Legal
Systems”, 76 RabelsZ 374 (2012).
Leible, S., and M. Müller, “The Idea of a ‘Rome 0 Regulation’ ”, 14 Ybk. Priv. Int’l
L. 137 (2013).
Lein, E., “Further Step towards a European Code of Private International Law : The
Commission Proposal for a Regulation on Succession”, 11 Ybk Priv. Int’l L. 107
(2009).
–, “The New Rome I/Rome II/Brussels I Synergy”, 10 Ybk. Priv. Int’l L. 177 (2008).
Levi, L., “The Problem of Trans-National Libel”, 60 Am. J. Comp. L. 507 (2012).
Levin, H., “What Do We Really Know about the American Choice-of-Law
Revolution ?, reviewing S. Symeonides, The American Choice-of-Law Revolution,
2006”, 60 Stan. L. Rev. 247 (2007).
Lewald, H., “Conflits de lois dans le monde grec et romain”, 57 Rev. critique dr. int’l
privé 419 (1968).
Liang, J., “Statutory Restrictions on Party Autonomy in China ’s Private International
Law of Contract : How Far Does the 2010 Codification Go ?”, 8 J. Priv. Int’l L.
77 (2012).
Lipstein, K., “The General Principles of Private International Law”, 135 Recueil des
cours 97 (1972).
Little, L., Conflict of Laws : Cases, Materials, and Problems, 2013.
–, “Conflict of Laws Structure and Vision : Updating a Venerable Discipline”, 31
Ga. St. U. L. Rev. 231 (2015).
–, “Hairsplitting and Complexity in Conflict of Laws : The Paradox of Formalism”,
54 Def. LJ 377 (2005).
Liukkunen, U., The Role of Mandatory Rules in International Labour Law : A
Comparative Study in the Conflict of Laws, 2004.
Lookofsky, J., “Danish Private International Law at the End of the 20th Century :
of the 20th Century : Progress or Regress 147, Kluwer (2000).
Lorenzen, E., “Story’s Commentaries on the Conflict of Laws – One Hundred Years
After”, 48 Harv. L. Rev. 15 (1934).
–, “Territoriality, Public Policy, and the Conflict of Laws”, 43 Yale LJ 736 (1924).
–, “Huber’s De Conflictu Legum”, 13 Ill. L. Rev. 375 (1919).
Loussouarn, Y., “Les vicissitudes de la codification du droit international privé
français”, in E pluribus unum : Liber amicorum Georges A. L. Droz, 191

(1996).
Loussouarn, Y., P. Bourel and P. de Vareilles-Sommieres, Droit international privé,
9th ed., 2007.
Lowenfeld, A., “International Litigation and the Quest for Reasonableness : General
Course on Private International Law”, 245 Recueil des cours 9 (1995).
Macey, J., “Public and Private Ordering and the Production of Legitimate and
Illegitimate Legal Rules”, 82 Cornell L. Rev. 1123 (1997).
Magnus, U., and P. Mankowski (eds.), European Commentaries on Private
International Law, 2009-2015.
Maier, H., “Finding the Trees in Spite of the Metaphorist : The Problem of State
Interests in Choice of Law”, 56 Alb. L. Rev. 753 (1993).
–, “The Utilitarian Role of a Restatement of Conflicts in a Common Law System :
How Much Judicial Deference is Due to the Restaters or ‘Who Are These Guys,
Anyway ?’”, 75 Ind. LJ 541 (2000).
Main, T., “The Procedural Foundation of Substantive Law”, 87 Wash. U. L. Rev.
801 (2010).
Malatesta, A., S. Bariatti and F. Pocar, The External Dimension of EC Private
International Law in Family and Succession Matters, 2008.
Maltz, E., “Do Modern Theories of Conflict of Laws Work ? The New Jersey
Experience”, 36 Rutgers LJ 527 (2005).
Mandery, M., Party Autonomy in Contractual and Non-Contractual Obligations,
2014.
Marenghi, C., “The Law Applicable to Product Liability in Context : Article 5 of the
Rome II Regulation and Its Interaction with Other EU Instruments”, 16 Ybk. Priv.
Int’l L. 511 (2014-2015).
Markesinis, B., “Understanding American Law by Looking at It through Foreign
Eyes : Towards a Wider Theory for the Study and Use of Foreign Law”, 81 Tul.
L. Rev. 123 (2006).
Martinek, M., “The Seven Pillars of Wisdom in Private International Law – The
German and the Swiss Experience with the Codification of Conflicts Law Rules”,
Chinese Ybk. Priv. Int’l L. & Comp. L. 15 (2001).
Martinez, J. S., “New Territorialism and Old Territorialism”, 99 Cornell L. Rev.
1387 (2014).
Martinez-Fraga, P. J., The New Role of Comity in Private Procedural International
Law, 2007.
Maultzsch, F., “Choice of Law and Ius Cogens in Conflict of Laws for Contractual
Obligations”, 75 RabelsZ 60 (2011).
Maxeiner, J. R., “Legal Certainty : A European Alternative to American Legal
Indeterminacy ?”, 15 Tul. J. Int’l & Comp. L. 541 (2007).
Mayer, P., “Le phénomène de la coordination des ordres juridiques étatiques en droit
privé. Cours général de droit international privé”, 327 Recueil des cours 9 (2007).
–, “L’Etat et le droit international privé”, 16 Droits : rev. française de théorie
juridique 33 (1992).
–, “Le rôle du droit public en droit international privé”, Rev. int’le droit comp. 467
(1986).
McClean, D., “Perspectives on Private International Law at the Turn of the Century”,
McClean, D., and K. Beevers, Morris [on] the Conflict of Laws, 7th ed., 2009.
McDougal, L., “Leflar’s Choice-Influencing Considerations : Revisited, Refined
and Reaffirmed”, 52 Ark. L. Rev. 105 (1999).
–, “Toward the Increased Use of Interstate and International Policies in Choice-of-
Law Analysis in Tort Cases under the Second Restatement and Leflar’s Choice-
Influencing Considerations”, 70 Tul L. Rev. 2465 (1996).
–, “The Real Legacy of Babcock v. Jackson : Lex Fori Instead of Lex Loci Delicti
and Now It’s Time for a Real Choice-of-Law Revolution”, 56 Alb. L. Rev. 795
(1993).
–, “Private International Law : Jus Gentium versus Choice of Law Rules or

Approaches”, 38 Am. J. Comp. L. 521 (199).
–, “Toward Application of the Best Rule of Law in Choice of Law Cases”, 35
Mercer L. Rev. 483 (1984).
–, “Comprehensive Interest Analysis versus Reformulated Governmental Interest
Analysis : An Appraisal in the Context of Choice-of-Law Problems concerning
Contributory and Comparative Negligence”, 26 UCLA L. Rev. 439 (1979).
McDougal, L., R. Felix and R. Whitten, American Conflicts Law, 5th ed., 2001.
McParland, M., The Rome I Regulation on the Law Applicable to Contractual
Obligations, 2015.
Meeusen, J., “Instrumentalisation of Private International Law in the European
Union : Towards a European Conflicts Revolution ?”, 9 Eur. J. Migr. & L. 287
(2007).
Meeusen, J., M. Pertegás and G. Straetmans (eds.), Enforcement of International
Contracts in the European Union, 2004.
Meeusen, J., M. Pertegás, G. Straetmans and F. Swennen (eds.), International
Family Law for the European Union, 2007.
Meijers, E. M., “L’histoire des principes fondamentaux du droit international privé
à partir du Moyen Age spécialement dans l’Europe occidentale”, 49 Recueil des
cours 543 (1934).
Miceli, A. P., “Bartolus of Sassoferrato”, 37 La. L. Rev. 1027 (1977).
Michaels, R., and N. Jansen, “Private Law beyond the State ? Europeanization,
Globalization, Privatization”, 54 Am. J. Comp. L. 843 (2006).
Michaels, R., “Post-critical Private International Law : From Politics to Technique”,
in H. Muir Watt and D. P. Fernández Arroyo (eds.), Private International Law and
Global Governance 54 (2014).
–, “The Mirage of Non-State Governance”, 1 Utah L. Rev. 31 (2010).
–, “After the Revolution – Decline and Return of U.S. Conflict of Laws”, 11 Ybk
Priv. Int’l L. 11 (2009).
–, “Global Legal Pluralism”, 5 Ann. Rev. L. & Soc. Sci. 243 (2009).
–, “Economics of Law as Choice of Law”, 71.3 L. & Contemp. Probs. 73 (2008).
–, “Introduction to The New European Choice of Law Revolution”, 82 Tul. L. Rev.
1607 (2008).
–, “Public and Private International Law : German Views on Global Issues”, 4
J. Priv. Int’l L. 121 (2008).
–, “The New European Choice-of-Law Revolution”, 82 Tul. L. Rev. 1607 (2008).
–, “Globalizing Savigny ? The State in Savigny’s Private International Law, and the
Challenge of Europeanization and Globalization”, in M. Stolleis and W. Streeck
(eds.), Aktuelle Fragen politischer und rechtlicher Steuerung im Kontext der
Globalisierung 119 (2007).
–, “The True Lex Mercatoria : Law beyond the State”, 14 Ind. J. Global Legal Stud.
447 (2007).
–, “The Re-state-ment of Non-state Law : The State, Choice of Law, and the
Challenge from Global Legal Pluralism”, 51 Wayne L. Rev. 1209 (2005).
Miller, G. P., and T. Eisenberg, “The Market for Contracts”, 30 Cardozo L. Rev.
2073 (2009).
Mills, A., The Confluence of Public and Private International Law : Justice,
Pluralism and Subsidiarity in the International Constitutional Ordering of
Private Law, 2009.
–, “The Identities of Private International Law : Lessons from the U.S. and EU
Revolutions”, 23 Duke J. Comp. & Int’l L. 445 (2013).
–, “Rediscovering the Public Dimension of Private International Law”, Hague Ybk.
Int’l L. 24 (2012).
–, “Federalism in the European Union and the United States : Subsidiarity, Private
Law, and the Conflict of Laws”, 32 U. Pa. J. Int’l L. 369 (2010).
–, “The Dimensions of Public Policy in Private International Law”, 4 J. Priv. Int’l
L. 201 (2008).
–, “The Private History of International Law,” 55 Int’l & Comp. LQ 1 (2006).
Mo, Z., “Party Autonomy in Non-Contractual Obligations : Rome II and Its Impacts
on Choice of Law”, 39 Seton Hall L. Rev. 861 (2009).
Mohamed Salah, M. M., “Loi d’autonomie et méthodes de protection de la partie
faible en droit international privé”, 315 Recueil des cours 141 (2005).
Moringiello, J. M., and W. L. Reynolds, “The New Territorialism in the Not-So-
New Frontier of Cyberspace”, 99 Cornell L. Rev. 1415 (2014).
Mortensen, R., R. Garnett and M. Keyes, Private International Law in Australia,
3rd ed., 2015.
Mosconi, F., “A Few Questions on the Matter of International Uniformity of
Solutions and Nationality as a Connecting Factor”, in Private Law in the
International Arena : Liber Amicorum Kurt Siehr 465 (2000).
–, “Exceptions to the Operation of Choice of Law Rules”, 217 Recueil des cours
9 (1989).
Moura Ramos, R., Estudos de Direito Internacional Privado e de Direito Processual
Civil Internacional 2002, 2007.
–, “Le droit international privé portugais à la fin du vingtième siècle : Progrès
ou recul ?”, in S. Symeonides, Private International Law at the End of the
20th Century : Progress or Regress ?, 349 (2000).
Moustaira, A., The Evolution of Private International Law in the United States :
Tradition, Revolution, Counter-Revolution (in Greek) 1996.
Muir Watt, H., “A Semiotics of Private International Legal Argument”, 14 Ybk. Priv.
Int’l L. 51 (2013).
–, “ ‘Party Autonomy’ in International Contracts : From the Makings of a Myth to
the Requirements of Global Governance”, 6 Eur. Rev. Contr. L. 250 (2010).
–, “European Federalism and the ‘New Unilateralism’ ”, 82 Tul. L. Rev. 1983 (2008).
–, “Aspect économiques du droit international privé”, 3007 Recueil des cours
25 (2005).
–, “Globalisation des marchés et économie politique du droit international privé”,
47 Arch. phil. dr. 243 (2003).
–, “Choice of Law in Integrated and Interconnected Markets”, 9 Colum. J. Eur. L.
383 (2003).
–, “Law and Economics : Quelle contribution pour le droit international privé ?”,
Melanges J. Gestin 685 (2000).
–, “La codification en droit international privé”, 27 Droits : rev. franç. théor. jurid.
149 (1998).
–, “Les principes généraux en droit international privé français”, 124 J. dr. int’l
403 (1997).
–, “Quelques remarques sur la théorie anglo-américaine des droits acquis”, 75 Rev.
critique 425 (1986).
Muir Watt, H. (ed.), Private International Law and Public Law, 2015.
Muir Watt, H., and D. P. Fernández Arroyo (eds.), Private International Law and
Global Governance, 2015.
Nadelmann, K. H., “Bicentennial Observations on the Second Edition of Joseph
Story’s Commentaries on the Conflict of Laws”, 28 Am. J. Comp. L. 66 (1980).
–, “Wächter’s Essay on the Collision of Private Laws of Different States”, 13 Am.
J. Comp. L. 414 (1963).
–, “Joseph Story’s Contribution to American Conflicts Law : A Comment”, 5 Am.
J. Legal Hist. 230 (1961).
Nafziger, J., “The Good Word(s) from Fritz Juenger”, in Juenger, Special ed., xlvi
(2005).
–, “Avoiding Courtroom ‘Conflicts’ Whenever Possible”, in J. Nafziger and
S. Symeonides (eds.), Law and Justice in a Multistate World : Essays in Honor of
Arthur T. von Mehren 341 (2002).
–, “Making Choices of Law Together”, 37 Willamette L. Rev. 209 (2000).
Nafziger, J., and S. Symeonides, Law and Justice in a Multistate World : Essays in
Honor of Arthur T. von Mehren, New York, 2002.
Nagan, W. P., “Theory and Method in Private International Law : A Policy-Oriented,

Internationalist Perspective”, in J. Erauw et al. (eds.) Liber Memorialis François
Laurent 907 (1989).
Nagy, C. I., Private International Law in Hungary, 2012.
Neels, J. L., “The Nature, Objective and Purposes of the Hague Principles on Choice
of Law in International Contracts”, 15 Ybk. Priv. Int’l L. 45 (2013-2014).
Neuman, G. L., “Extraterritoriality and the Interest of the United States in Regulating
Its Own”, 99 Cornell L. Rev. 1441 (2014).
Nickel, R., Conflict of Laws and Laws of Conflict in Europe and Beyond : Patterns
of Supranational and Transnational Juridification, 2010.
Nielsen, P., “Libel Tourism : English and EU Private International Law”, 9 J. Priv.
Int’l L. 269 (2013).
Nishitani, Y., “The Rome II Regulation from a Japanese Point of View”, 9 Ybk. Priv.
Int’l L. 175 (2008).
–, “New Private International Law of Japan : Protection of Weaker Parties and
Mandatory Rules”, 50 Japan. Ann. Int’l L. 40 (2007).
North, P., Essays in Private International Law, Oxford, 1993.
–, “Private International Law : Change or Decay ?”, 50 Int’l & Comp. LQ 477
(2001).
–, “Reform, but not Revolution : General Course on Private International Law”,
Nussbaum, A., “Rise and Decline of the Law-of-Nations Doctrine in the Conflict of
Laws”, 42 Colum. L. Rev. 189 (1942).
Nwabueze, R., The History and Sources of Conflict of Laws in Nigeria : With
Comparisons to Canada, 2009.
Nygh, P., “The Reasonable Expectations of the Parties as a Guide to the Choice of
Law in Contract and Tort”, 251 Recueil des cours 269 (1995).
O’Connor, G., “When in Rome : An Examination of Article 4 of the Rome Regime
on the Governing Law of International Contracts”, 9 Hibernian LJ 39 (2010).
O’Hara, E., and L. Ribstein, The Law Market, 2009.
–, “Rules and Institutions in Developing a Law Market : Views from the United
States and Europe”, 82 Tul. L. Rev. 2147 (2008).
–, “From Politics to Efficiency in Choice of Law”, 67 U. Chi. L. Rev. 1151
(2000).
O’Hara, E. (ed.), Economics of Conflict of Laws, 2007.
–, “Economics, Public Choice, and the Perennial Conflict of Laws”, 90 Geo. LJ
941 (2002).
–, “Opting out of Regulation : A Public Choice Analysis of Contractual Choice of
Law”, 53 Vand. L. Rev. 1551 (2000).
Obando Peralta, J. J., Private International Law in Costa Rica, 2013.
Okuda, Y., “A Short Look at Rome I on Contract Conflicts from a Japanese
Perspective”, 10 Ybk. Priv. Int’l L. 301 (2008).
Opertti Badán, D., and C. Fresnedo De Aguirre, “The Latest Trends in Latin
American Private International Law : The Uruguayan 2009 General Law on
Private International Law”, 11 Ybk Priv. Int’l L. 305 (2009).
Opertti Badán, D., “Conflit de lois et droit uniforme dans le droit international privé
contemporain : Dilemme ou convergence”, 359 Recueil des cours 9 (2012).
Oppong, R. F., Private International Law in Commonwealth Africa, 2013.
–, Private International Law in Ghana, 2012.
–, “Globalization and Private International Law in Commonwealth Africa”, 36 U.
Ark. Little Rock L. Rev. 153 (2014).
–, “A Decade of Private International Law in African Courts 1997-2007, Part I”,
9 Ybk. Priv. Int’l L. 223 (2007). “Part II”, 10 Ybk. Priv. Int’l L. 367 (2008).
–, “Private International Law in Africa : The Past, Present, and Future”, 55 Am.
J. Comp. L. 677 (2007).
Pajor, T., “Introduction to the New Polish Act on Private International Law of
4 February 2011”, 13 Ybk. Priv. Int’l L. 381 (2011).
–, “Polish Private International Law at the End of the 20th Century : Progress
20th Century : Progress or Regress ? 329 (2000).
Pamboukis, C. P., “Droit international privé holistique : Droit uniforme et droit
–, “Les clauses d’exception en matière de conflits de lois et de conflits de juridictions
– Grèce”, in D. Kokkini-Iatridou (ed.), Les clauses d’exception en matière
de conflits de lois et de conflits de juridictions – ou le principe de proximité,
1994.
–, “L’acte quasi public en droit international privé”, 82 Rev. critique dr. int’l priv.
565 (1993).
Papadopoulou, T., The Role of the Judge in Private International Law (in Greek),
2000.
Papassiopi-Passia, Z., Rules of Immediate Application and Substantive Choice of
Law Rules (in Greek), 1989.
–, New Trends in the Private International Law of Conventional Obligations (in
Greek), 1985.
Parra-Aranguren, G., “General Course on Private International Law : Selected
Problems”, 210 Recueil des cours 9 (1988).
Patocchi, P., Règles de rattachement localisatrices et règles de rattachement à
caractère substantiel : De quelques aspects récents de la diversification de la
méthode conflictuelle en Europe, 1985.
Pauknerová, M., Private International Law in the Czech Republic, 2011.
–, “Private International Law in the Czech Republic : Tradition, New Experience
and Prohibition of Discrimination on Grounds of Nationality”, 4 J. Priv. Int’l L.
83 (2008).
Pauknerová, M., and M. Pfeiffer, “The New Act on Private International Law in the
Czech Republic : Starting Points and Perspectives within the European Union”,
10 J. Priv. Int’l L. 205 (2014).
Paul, J. R., “The Transformation of International Comity”, 71.3 L. & Contemp.
Probs. 19 (2008).
Peari, S., “Better Law as a Better Outcome”, 63 Am. J. Comp. L. 155 (2015).
–, “Savigny’s Theory of Choice-of-Law as a Principle of ‘Voluntary Submission’ ”,
64 U. Toronto LJ 106 (2014).
–, “The Choice-Based Perspective of Choice-of-Law”, 23 Duke J. Comp. & Int’l
L. 477 (2013).
Perdue, W., “A Reexamination of the Distinction between ‘Loss-Allocating’ and
‘Conduct-Regulating Rules’”, 60 La. L. Rev. 1251 (2000).
Pereznieto-Castro, L., “Friedrich Juenger’s Vision of Legal Harmony”, in Juenger,
Special ed., xliii, 2005.
Pereznieto Castro, L., T. Treves and F. Seatzu (eds.), Tradition and Innovation in
Private International Law at the Beginning of the Third Millennium, 2006 (herein
cited as “Festschrift Juenger”).
Pertegás, M., and B. A. Marshall, “Party Autonomy and Its Limits : Convergence
through the New Hague Principles on Choice of Law in International Commercial
Contracts”, 39 Brook. J. Int’l L. 975 (2014).
Peterson, C., “Restating Conflicts Again : A Cure for Schizophrenia ?”, 75 Ind. LJ
549 (2000).
–, “American Private International Law at the End of the 20th Century : Progress
20th Century : Progress or Regress ? 430, Kluwer, 2000.
–, “New Openness to Statutory Choice of Law Solutions”, 38 Am. J. Comp. L. 423
(1990).
Picone, P., Diritto internazionale privato e diritto communtario, Cedam, 2004.
–, La riforma italiana del diritto internazionale privato, Padua, 1998.
–, “Les méthodes de coordination entre ordres juridiques en droit international
Pietriche, R., “The Ascendancy of the Lex Loci Delicti : The Problematic Role of
Theory in Australian Choice of Tort Law Rules”, 16 Melb. J. Int’l L. 86 (2015).
Pissler, K. B. “The New Private International Law of the People’s Republic of
China : Cross the River by Feeling the Stones”, 76 RabelsZ 1 (2012).
Pitel, S., and J. Harper, “Choice of Law for Tort in Canada : Reasons for Change”,
9 J. Priv. Int’l L. 289 (2013).
Pitel, S., and N. Rafferty, Conflict of Laws, 2010.
Plender, M., and M. Wilderspin (eds.), European Private International Law of
Obligations, 4th ed., 2015.
Pocar, F., and C. Honorati, “Italian Private International Law at the End of the
20th Century : Progress or Regress ?”, in S. Symeonides, Private International
Law at the End of the 20th Century : Progress or Regress ?, 279 (2000).
Pocar, F., “La protection de la partie faible en droit international privé”, 188 Recueil
des cours 340 (1984).
Posnak, B., “The Restatement, Second : Some Not So Fine Tuning for a Restatement,
Third : A Very Well-Curried Leflar over Reese with Korn on the Side, or Is It
Cob ?”, 75 Ind. LJ 561 (2000).
–, “Choice of Law – Interest Analysis : They Still Don’t Get It”, 40 Wayne L. Rev.
1121 (1994).
–, “Choice of Law : Interest Analysis and Its ‘New Crits’”, 36 Am. J. Comp. L. 681
(1988).
–, “Choice of Law : A Very Well-Curried Leflar Approach”, 34 Mercer L. Rev. 731
(1983).
Princi, J., “Private International Law in Pursuit of Justice for Tort Choice of Law”,
2002 Australian Int’l LJ 237 (2002).
Prujiner, A., “Canadian Private International Law at the End of the 20th Century :
Pryles, M. C., “Tort and Related Obligations in Private International Law”, 227
Quadri, R., Lezioni de diritto internazionale privato, 3rd ed., 1961.
Rafferty, N., J. Blom and E. Edinger, Private International Law in Common Law
Canada : Cases, Text, and Materials, 2010.
Raiteri, M., “Citizenship as a Connecting Factor in Private International Law for
Family Matters”, 10 J. Priv. Int’l L. 309 (2014).
Rasmusen-Bonne, H., R. Freer, W. Lüke and W. Weitnauer (eds.), Balancing of
Interests : Liber Amicorum Peter Hay, 2005 (herein cited as “Festschrift Peter
Hay”).
Reed, A, “The Rome I Regulation and Reapprochement of Anglo-American Choice
of Law in Contract : A Heralded Triumph of Pragmatism over Theory, 23 Fla. J.
Int’l L. 359 (2011).
–, “The Anglo-American Revolution in Tort Choice of Law Principles : Paradigm
Shift or Pandora’s Box ?” 18 Ariz. J. Int’l & Comp. L. 867 (2001).
–, “The Private International Law, Miscellaneous Provisions Act 1995 and the
Need for Escape Devices”, 15 Civ. Just. Q. 305 (1996).
Reese, W., “Statutes in Choice of Law”, 35 Am. J. Comp. L. 395 (1987).
–, “The Second Restatement of Conflict of Laws Revisited”, 34 Mercer L. Rev. 501
(1983).
–, “American Choice of Law”, 30 Am. J. Comp. L. 135 (1982).
–, “American Trends in Private International Law : Academic and Judicial
Manipulation of Choice of Law Rules in Tort Cases”, 33 Vand. L. Rev. 717 (1980).
–, “Choice of Law in Torts and Contracts and Directions for the Future”, 16 Colum.
J. Trans’l L. 1 (1977).
–, “General Course on Private International Law”, 150 Recueil des cours 1 (1976).
–, “Dépeçage : A Common Phenomenon in Choice of Law”, 73 Colum. L. Rev. 58
(1973).
–, “Choice of Law : Rules or Approach”, 57 Cornell LQ 315 (1972).
–, “Choice of Law”, 71 Colum. L. Rev. 548 (1971).

–, “Chief Judge Fuld and Choice of Law”, 71 Colum. L. Rev. 548 (1971).
Reimann, M., “Review of Symeon C. Symeonides, Codifying Choice of Law around
the World : An International Comparative Analysis”, 63 Am. J. Comp. L. 801
(2015).
–, “Remarks by an Embarrassed but Unrepentant Multilateralist”, in Juenger,
Special ed., lxv, 2005.
–, “Domestic and International Law in the United States and Western Europe”, in
P. J. Borchers and J. Zekoll (eds.), International Conflict of Laws for the Third
–, “Parochialism in American Conflict Law”, 49 Am. J. Comp. L. 369 (2001).
–, “Codifying Torts Conflicts : The 1999 German Legislation in Comparative
Perspective”, 60 La. L. Rev. 1297 (2000).
–, “A New Restatement for the International Age”, 75 Ind. LJ 575 (2000).
–, “Savigny’s Triumph ? Choice of Law in Contracts Cases at the Close of the
Twentieth Century”, 39 Va. J. Int’l L. 571 (1999).
Remy, B., Exception d’ordre public et mécanisme des lois de police en droit
international privé, 2008.
Reppy, W. A., “Eclecticism in Methods for Resolving Tort and Contract Conflict of
Laws : The United States and the European Union”, 82 Tul. L. Rev. 2053 (2008).
–, “Codifying Interest Analysis in the Torts Chapter of a New Conflicts Restate-
ment”, 75 Ind. LJ 591 (2000).
–, “Eclecticism in Choice of Law : Hybrid Method or Mishmash ?”, 34 Mercer
L. Rev. 645 (1983).
Reynolds, W., “Legal Process and Choice of Law”, 56 Md. L. Rev. 1371 (1997).
–, “Robert Leflar, Judicial Process and Choice of Law”, 52 Ark. L. Rev. 123 (1999).
Rheinstein, M., “How to Review a Festschrift”, 11 Am. J. Comp. L. 632 (1962).
Ribstein, L., and E. O’Hara, “Corporations and the Market for Law”, 2008 U. Ill.
L. Rev. 661 (2008).
Ribstein, L., “From Efficiency to Politics in Contractual Choice of Law”, 37 Ga. L.
Rev. 363 (2003).
Richman, W., and D. Riley, “The First Restatement of Conflict of Laws on the
Twenty-Fifth Anniversary of Its Successor : Contemporary Practice in Traditional
Courts”, 56 Md. L. Rev. 1196 (1997).
Richman, W., “A New Breed of Smart Empirically Derived Conflicts Rules :
Better Law than ‘Better Law’ in the Post-Tort Reform Era : Reviewing Symeon
C. Symeonides, The American Choice-of-Law Revolution : Past, Present and
Future”, 82 Tul. L. Rev. 2181 (2008).
–, “Prologomenon to an Empirical Restatement of Conflicts”, 75 Ind. LJ 417 (2000).
Richman, W., W. Reynolds and C. Whytock, Understanding Conflict of Laws,
4th ed., 2013.
Rigaux, F., “Codification of Private International Law : Pros and Cons”, 60 La. L.
Rev. 1321 (2000).
–, “Droit privé matériel et règles de conflit de lois”, Rev. belge dr. int. 385 (1991).
–, “Les situations juridiques individuelles dans un système de relativité’ générale :
Cours général de droit international privé”, 213 Recueil des cours 9 (1989).
Riles, A., “Cultural Conflicts”, 71.3 L. & Contemp. Probs. 273 (2008).
–, “The Anti-Network : Private Global Governance, Legal Knowledge, and the
Legitimacy of the State”, 56 Am. J. Comp. L. 605 (2008).
Rodi, F., “Private Law beyond the Democratic Order ? On the Legitimatory Problem
of ‘Private Law Beyond the State’ ”, 56 Am. J. Comp. L. 743 (2008).
Roodt, C., Private International Law, Art and Cultural Heritage, 2015.
–, “Party Autonomy in International Law of Succession : A Starting Point for a
Global Consensus”, 2 J. So. African L. 241 (2009).
–, “The Integration of Substantive Law Interests and Material Justice in South
African Choice of Law”, 36 Comp. & Int’l LJ of So. Afr. 1 (2003).
Roosevelt, K., Conflict of Laws, 2nd ed., 2015.
–, “Brainerd Currie’s Contribution to Choice of Law : Looking Back, Looking

Forward”, 65 Mercer L. Rev. 501 (2014).
–, “Resolving Renvoi : The Bewitchment of Our Intelligence by Means of
Language”, 80 Notre Dame L. Rev. 1821 (2005).
–, “The Myth of Choice of Law : Rethinking Conflicts”, 97 Mich. L. Rev. 2448
(1999).
Rosen, M. D., “Choice-of-Law as Non-Constitutional Federal Law”, 99 Minn. L.
Rev. 1017 (2015).
–, “Hard or Soft Pluralism ? : Positive, Normative, and Institutional Considerations
of States’ Extraterritorial Powers”, 51 St. Louis U. LJ 713 (2007).
Rosenberg, M., “The Comeback of Choice-of-Law Rules”, 81 Colum. L. Rev. 946
(1981).
Rozehnalová, N., and J. Valdhans, “Rome I and Rome II Regulations : Choice of
Law Compared”, 7 J. Eurasian L. 1 (2014).
Rühl, G., and J. von Hein, “Towards a European Code on Private International
Law ?”, 79 RabelsZ 701 (2015).
Rühl, G., “The Protection of Weaker Parties in the Private International Law of
the European Union : A Portrait of Inconsistency and Conceptual Truancy”, 10 J.
Priv. Int’l L. 335 (2014).
–, “Consumer Protection in Choice of Law”, 44 Cornell Int’l LJ 569 (2011).
–, “Methods and Approaches in Choice of Law : An Economic Perspective”, 24
Berkeley J. Int’l L. 801 (2006).
Sack, A. N., “Conflicts of Laws in the History of English Law”, in A. Reppy (ed.),
Law : A Century of Progress 1835-1935, Vol. 3, 344 (1937).
Sakurada, Y., and E. Schwittek, “The Reform of Japanese Private International
Law”, 76 RabelsZ 86 (2012).
Sanchez Lorenzo, S., “Choice of Law and Overriding Mandatory Rules in
International Contracts after Rome I”, 12 Ybk. Priv. Int’l L. 67 (2010).
Sanga, S., “Choice of Law : An Empirical Analysis”, 11 J. Empirical Legal Stud.
894 (2014).
Saumier, G., “The Hague Principles and the Choice of Non-State ‘Rules of Law’
to Govern an International Commercial Contract”, 40 Brook. J. Int’l L. 1
(2014).
–, “Competing Class Actions across Canada : Still at the Starting Gate after Canada
Post v. Lépine ?”, 48 Can. Bus. LJ 462 (2010).
Sauveplanne, J. G., “New trends in the Doctrine of Private International Law and
Their Impact on Court Practice”, 175 Recueil des cours 9 (1982).
Savigny, F. C. von, System des heutigen römischen Rechts, 1849, English translation
by William Guthrie, under the title Private International Law, A Treatise on the
Conflict of Laws and the Limits of Their Operation in Respect of Place and Time,
1869.
Schäfer, K. A. S., Application of Mandatory Rules in the Private International Law
of Contracts : A Critical Analysis of Approaches in Selected Continental and
Common Law Jurisdictions (2010).
Schoeman, E., “Third, Anglo-Common Law Countries and Rome II : Dilemma or
Deliverance ?”, 7 J. Priv. Int’l L. 361, 2011.
Schoeman, E., C. Roodt and M. Wethmar-Lemmer, Private International Law in
South Africa, 2014.
Schurig, K., “Interessenjurisprudenz contra Interessenjurisprudenz im IPR : Anmer-
kungen zu Flessners Thesen”, 59 RabelsZ 229 (1995).
Schwarcz, S., “Private Ordering”, 97 Nw. U. L. Rev. 319 (2002).
Schwartz, A., and R. Scott, “The Political Economy of Private Legislatures”, 143 U.
Pa. L. Rev. 595 (1995).
Sedler, R., “American Federalism, State Sovereignty, and the Interest Analysis
Approach to Choice of Law”, in Law and Justice in a Multistate World : Essays
in Honor of Arthur T. von Mehren, J. Nafziger and S. Symeonides (eds.), 369
(2002).
–, “The Louisiana Codification and Tort Rules of Choice of Law”, 60 La. L. Rev.
1331 (2000).
–, “Choice of Law in Conflicts Torts Cases : A Third Restatement or Rules of
Choice of Law ?”, 75 Ind. LJ 615 (2000).
–, “A Real World Perspective on Choice of Law”, 48 Mercer L. Rev. 781 (1997).
–, “Interest Analysis, Party Expectations and Judicial Method in Conflicts Torts
Cases : Reflections on Cooney v. Osgood Machinery, Inc.”, 59 Brook. L. Rev.
1323 (1994).
–, “Professor Juenger’s Challenge to the Interest Analysis Approach to Choice-of-
Law : An Appreciation and a Response”, 23 UC Davis L. Rev. 865 (1990).
–, “Interest Analysis as the Preferred Approach to Choice of Law : A Response to
Professor Brilmayer’s ‘Foundational Attack’ ”, 46 Ohio St. LJ 483 (1985).
–, “Interest Analysis and Forum Preference in the Conflict of Laws : A Response to
the ‘New Crits’ ”, 34 Mercer L. Rev. 593 (1983).
–, “Reflections on Conflict-of-Laws Methodology”, 32 Hastings LJ 1628 (1981).
–, “Rules of Choice of Law versus Choice-of-Law Rules : Judicial Method in
Conflicts Torts Cases”, 44 Tenn. L. Rev. 975 (1977).
–, “The Governmental Interest Analysis to Choice of Law : An Analysis and a
Reformulation”, 25 UCLA L. Rev. 181 (1977).
–, “On Choice of Law and the Great Quest : A Critique of Special Multistate
Solutions to Choice-of-Law Problems”, 7 Hofstra L. Rev. 807 (1979).
Seidelson, D., “Interest Analysis : The Quest for Perfection and the Frailties of
Man”, 19 Duq. L. Rev. 207 (1981).
Sein, K., “The Development of Private International Law in Estonia”, 10 Ybk. Priv.
Int’l L. 459 (2008).
Sein, K., et al., “Private International Law : Estonia”, in Int’l Encycl. Priv. Int’l L.,
2014.
Shapira, A., “Territorialism, National Parochialism, Universalism and Party
Autonomy : How Does One Square the Choice of Law Circle ?”, 26 Brooklyn J.
Int’l L. 199 (2000).
Sharkey, C., “Punitive Damages as Societal Damages”, 113 Yale LJ 347 (2003).
Shreve, G., and H. Buxbaum, Conflict-of-Laws Anthology, 2nd ed., 2011.
Shreve, G., “Book Review [Symeonides, The American Choice-of-Law Revolution
in the Courts]”, 52 Am. J. Comp. L. 1003 (2004).
–, “Conflicts Altruism”, in Law and Justice in a Multistate World : Essays in Honor
of Arthur T. von Mehren, J. Nafziger and S. Symeonides (eds.), 383 (2002).
–, “Every Conflicts Decision Is a Promise Broken”, 60 La. L. Rev. 1345 (2000).
–, “Notes from the Eye of the Storm”, 48 Mercer L. Rev. 823 (1997).
Siegel, D., “A Retrospective on Babcock v. Jackson : A Personal View”, 56 Alb. L.
Rev. 693 (1993).
Siehr, K., “Private International Law, History of”, in J. Basedow et al. (eds.), Ency-
clopedia of PIL, 2017.
–, “Globalization and National Culture : Recent Trends toward a Liberal Exchange
of Cultural Objects”, 38 Vand. J. Transnat’l L. 1067 (2005).
–, “Revolution and Evolution in Conflicts Law”, 60 La. L. Rev. 1353 (2000).
–, “Swiss Private International Law at the End of the 20th Century : Progress or
Regress ?”, in S. Symeonides, Private International Law at the End of the 20th
–, “False conflicts, lois d’application immediate und andere ‘Neuentdeckungen’
im IPR : zu gewissen Eigengesetzlichkeiten kollisionsrechtlicher Systeme”, in
J. Basedow et al. (eds.), Festschrift für Ulrich Drobnig 443 (1998).
–, “Domestic Relations in European Private International Law : European
Equivalents to American Evolutions in Conflict of Laws”, 30 Am. J. Comp. L.
37 (1982).
–, “Ehrenzweigs lex-fori-Theorie und ihre Bedeutung für das amerikanische und
deutsche Kollisionsrecht”, 34 RabelsZ 583 (1970).
Silberman, L. J., “Rethinking Rules of Conflict of Laws in Marriage and Divorce
in the United States : What Can We Learn from Europe ?”, 82 Tul. L. Rev. 1999
(2008).
Simon-Depitre, “Les règles matérielles dans le conflit de lois”, 63 Rev. critique 591
(1974).
Simson, G. J., Issues and Perspectives in Conflict of Laws : Cases and Materials,
5th ed., 2015.
–, “Choice of Law after the Currie Revolution : What Role for the Needs of the
Interstate and International Systems ?”, 63 Mercer L. Rev. 715 (2012).
–, “The Choice-of-Law Revolution in the United States : Notes on Rereading von
Mehren”, 36 Cornell Int’l LJ 125 (2003).
–, “State Interests, State Autonomy, and the Quest for Uniformity in Choice of
Law”, in, J. Nafziger and S. Symeonides (eds.), Law and Justice in a Multistate
World : Essays in Honor of Arthur T. von Mehren 391 (2002).
–, “Leave Bad Enough Alone”, 75 Ind. LJ 649 (2000).
–, “Resisting the Allure of Better Rule of Law”, 52 Ark. L. Rev. 141 (1999).
–, “The Neumeier-Schultz Rules : How Logical a ‘Next State in the Evolution of the
Law’ after Babcock ?”, 56 Alb. L. Rev. 913 (1993).
–, “Plotting the Next ‘Revolution’ in Choice of Law : A Proposed Approach”, 24
Cornell Int’l LJ 279 (1991).
Singer, J. W., “Multistate Justice : Better Law, Comity, and Fairness in the Conflict
of Laws”, 2015 U. Ill. L. Rev. 1923 (2015).
–, “Property Law Conflicts”, 54 Washburn LJ 129 (2014).
–, “Pay No Attention to that Man behind the Curtain : The Place of Better Law in a
Third Restatement of Conflicts”, 75 Ind. LJ 659 (2000).
–, “Justice and the Conflict of Laws”, 48 Mercer L. Rev. 831 (1997).
–, “A Pragmatic Guide to Conflicts”, 70 BU L. Rev. 731 (1990).
–, “Facing Real Conflicts”, 24 Cornell Int’l LJ 197 (1991).
Soirat, F., Les règles de rattachement à caractère substantiel, 1995.
Solenik, D., “Attempting a ‘Judicial Restatement’ of Private International Law in
Belarus”, 10 Ybk. Priv. Int’l L. 505 (2008).
Solimine, M., “The Impact of Babcock v. Jackson : An Empirical Note”, 56 Alb. L.
Rev. 773 (1993).
–, “An Economic and Empirical Analysis of Choice of Law”, 24 Georgia L. Rev.
49 (1989).
Solomon, D., “The Private International Law of Contracts in Europe : Advances and
Retreats”, 82 Tul. L. Rev. 1709 (2008).
Solomon, L., “International Comity at the Crossroads : Practical Implications and
Public Policy Challenges”, 1 NYU J. L. & Bus. 269 (2004).
Sonnenberger, H. J., “L’harmonisation ou l’uniformisation européenne du droit
des contrats sont-elles nécessaires ? Quels problèmes suscitent-elles ?”, 91 Rev.
critique dr. int’l privé 405 (2002).
–, “Le droit international privé allemand à la fin du vingtième siècle : Progrès
ou recul ?”, in S. Symeonides, Private International Law at the End of the
20th Century : Progress or Regress ? 221 (2000).
Southerland, H., “Sovereignty, Value Judgments, and Choice of Law”, 38 Brandeis
LJ 451 (2000).
Spillenger, C., Principles of Conflict of Laws, 2nd ed., 2015.
–, “Risk Regulation, Extraterritoriality, and Domicile : The Constitutionalization
of American Choice of Law, 1850–1940”, 62 UCLA L. Rev. 1240 (2015).
Spiro, P. J., “The Boundaries of Cosmopolitan Pluralism”, 51 Wayne L. Rev. 1261 (2005).
Stanivukoviċ, M., “Yugoslavian Private International Law at the End of the 20th
Century : Progress or Regress ?”, in S. Symeonides, Private International Law at
the End of the 20th Century : Progress or Regress ? 461 (2000).
Stanivukoviċ, M., and M. Živkovic, Private International Law : Serbia”, in Int’l
Encycl. Priv. Int’l L., 2014.
Starace, V., “Le champ de la juridiction selon la loi de réforme du système italien de
droit international privé”, 85 Rev. critique 67 (1996).
Stark, B., “When Globalization Hits Home : International Family Law Comes of
Age”, 39 Vand. J. Transnat’l L. 1551 (2006).
Steindorff, E., Sachnormen im internationalen Privatrecht, 1958.
Stephan, P., “The Political Economics of Choice of Law”, 90 Geo. LJ 957 (2002).
Sterio, M., “Clash of the Titans : Collisions of Economic Regulations and the Need
to Harmonize Prescriptive Jurisdiction Rules”, 13 U.C. Davis J. Int’l L. & Pol’y
95 (2007).
–, “The Globalization Era and the Conflict of Laws : What Europe Could Learn
from the United States and Vice Versa”, 13 Cardozo J. Int’l & Comp. L. 161
(2005).
Sterk, S., “Personal Jurisdiction and Choice of Law”, 98 Iowa L. Rev. 1163 (2013).
–, “The Marginal Relevance of Choice of Law Theory”, 142 U. Pa. L. Rev. 949
(1994).
Stone, P., EU Private International Law, 3rd ed., 2014.
Storme, M., “Freedom of Contract : Mandatory and Non-Mandatory Rules in
European Contract Law”, 15 Eur. Rev. Priv. L. 233 (2007).
Story, J., Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard
to Contracts, Rights and Remedies, and Especially in Regard to Marriages, Wills,
Successions, and Judgments, 1834.
Strikwerda, L., “Interest Analysis : No More than a ‘Protest Song’ ?”, in Law and
Reality : Essays in Honour of Cornelius Carel Albert Voskuil 301, Dordrecht,
1992.
Strong, S. I., “Limits of Procedural Choice of Law”, 39 Brook. J. Int’l L. 1027
(2014).
Strumia, F., “Citizenship and Free Movement : European and American Features of
a Judicial Formula for Increased Comity”, 12 Colum. J. Eur. L. 713 (2006).
Struycken, A. V. M., “The Codification of Dutch Private International Law – A Brief
Introduction to Book 10 BW”, 78 RabelsZ 592 (2014).
–, “Co-ordination and Co-operation in Respectful Disagreement. General Course
on Private International Law”, 311 Recueil des cours 5 (2004).
Svantesson, D. J. B., Private International Law and the Internet, 2nd ed, 2012.
–, “A Jurisprudential Justification for Extraterritoriality in, Private International
Law”, 13 Santa Clara J. Int’l L. 517 (2015).
Symeonides, S., Oxford Commentaries on American Law : Choice of Law, 2016.
–, “Private International Law : United States of America”, in International
Encyclopaedia of Laws, 2015.
–, Codifying Choice of Law around the World : An International Comparative
Analysis, 2014.
–, American Private International Law, 2008.
–, The American Choice-of-Law Revolution in the Courts : Past Present and Future,
2006.
–, Private International Law at the End of the 20th Century : Progress or Regress ?,
2000.
–, An Outsider’s View of the American Approach to Choice of Law : Comparative
Observations on Current American and Continental Conflicts Doctrine,
Cambridge, Mass. 1980.
–, “The Choice-of-Law Revolution Fifty Years after Currie : An End and a
Beginning”, 2015 U. Ill. L. Rev. 1847 (2015).
–, “Torts and Conflict of Laws”, in M. Bussani and A. Sebok (eds.), Comparative
Tort Law : Global Perspectives, 39 (2015).
–, “Issue-by-Issue Analysis and Dépeçage in Choice of Law : Cause and Effect”, 45
U. Tol. L. Rev. 751 (2014).
–, “Party Autonomy and the Lex Limitativa”, in In Search of Justice : Essays in
Honour of Spyridon V. Vrellis 909 (2014).
–, “Party Autonomy in International Contracts and the Multiple Ways of Slicing the
Apple”, 39 Brook. J. Int’l L. 1123 (2014).
–, “L’autonomie de la volonté dans les principes de la Haye sur le choix de la loi
applicable en matière de contrats internationaux”, 102 Rev. critique dr. int’l priv.
807 (2013).
–, “The Hague Principles on Choice of Law for International Contracts : Some
Preliminary Comments”, 61 Am. J. Comp. L. 873 (2013).
–, “Codification and Flexibility in Private International Law”, in K. Brown and
D. Snyder (eds.), General Reports of the XVIII Congress of the International
Academy of Comparative Law 167 (2012).
–, “The Mosaics of Kanakaria : A Small Victory against Traders of Looted Cultural
Property”, in Á. Samara-Krispi (ed.), Protection and Return of Cultural Property,
56, 2011 (in Greek).
–, “American Federalism and Private International Law”, 63 Rev. hellénique dr.
int’l 537 (2010).
–, “Codifying Choice of Law for Tort Conflicts : The Oregon Experience in
Comparative Perspective”, 12 Ybk. Priv. Int’l L. 201 (2010).
–, “Party Autonomy in Rome I and II : An Outsider’s Perspective”, 2009 Nederl.
IPR. 191 (2010).
–, “A New Conflicts Restatement : Why Not ?”, 5 J. Priv. Int’l L. 383 (2009).
–, “Choice of Law in Cross-Border Torts : Why Plaintiffs Win and Should”, 61
Hastings LJ 337 (2009).
–, “Party Autonomy and Private Law-Making in Private International Law : The Lex
Mercatoria that Isn’t”, in Festschrift für Konstantinos D. Kerameus 1397 (2009).
–, “The Conflicts Book of the Louisiana Civil Code : Civilian, American, or
Original ?”, 83 Tul. L. Rev. 1041 (2009).
–, “Oregon’s New Choice-of-Law Codification for Tort Conflicts : An Exegesis”,
88 Or. L. Rev. 963 (2009).
–, “Result-Selectivism in Conflicts Law”, 46 Willamette L. Rev. 1 (2009).
–, “Rome II and Tort Conflicts : A Missed Opportunity”, 56 Am. J. Comp. L. 173
(2008).
–, “Rome II : A Centrist Critique”, 9 Ybk. Priv. Int’l L. 149 (2008).
–, “The American Revolution and the European Evolution in Choice of Law :
Reciprocal Lessons”, 82 Tul. L. Rev. 1741 (2008).
–, “Oregon’s Choice-of-Law Codification for Contract Conflicts : An Exegesis”, 44
–, “The First Conflicts Restatement through the Eyes of Old : As Bad as Its
Reputation ?”, 32 S. Ill. U. LJ 39 (2007).
–, “The Quest for the Optimum in Resolving Product-Liability Conflicts”, in Essays
in Honor of P. John Kozyris 431 (2007).
–, “Contracts Subject to Non-State Norms”, 54 Am. J. Comp. L. 209 (2006 Supp.).
–, “Cruising in American Waters : Spector, Maritime Conflicts, and Choice of
Law”, 37 J. Mar. L. & Com. 491 (2006).
–, “A Choice-of-Law Rule for Conflicts Involving Stolen Cultural Property”, 38
Vand. J. Transnat’l L. 1177 (2005).
–, “Accommodative Unilateralism as a Starting Premise in Choice of Law”, in
Festschrift Peter Hay 417 (2005).
–, “Of Teleology, State Interests, and Pluralism in Choice of Law : In Loving
Memory of Friedrich K. Juenger”, in F. K. Juenger, Choice of Law and Multistate
Justice xxxiii, Special ed., 2005.
–, “Choice of Law for Products Liability : The 1990s and Beyond”, 78 Tul. L. Rev.
1247 (2004).
–, “Party Choice in Product-Liability Conflicts”, 12 Willamette J. Int’l L. & Disp.
Resol. 263 (2004).
–, “Tort Conflicts and Rome II : A View from Across”, in Festschrift für Erik Jayme
935 (2004).
–, “Territoriality and Personality in Tort Conflicts”, in T. Einhorn and K. Siehr
(eds.), Intercontinental Cooperation through Private International Law : Essays
in Memory of Peter Nygh 401 (2004).
–, “Resolving Punitive-Damages Conflicts”, 5 Ybk. Priv. Int’l L. 1 (2003).
–, “Codifying Choice of Law for Contracts : The Oregon Experience”, 67 RabelsZ
726 (2003).
–, “Codifying Puerto Rico’s Choice-of-Law for Contracts”, in Law and Justice in
a Multistate World : Essays in Honor of Arthur T. von Mehren, J. Nafziger and
S. Symeonides (eds.), 419 (2002).
–, “American Choice of Law at the Dawn of the 20th Century”, 37 Willamette
L. Rev. 1 (2000).
–, “Material Justice and Conflicts Justice in Choice of Law”, in International
Conflict of Laws for the Third Millennium : Essays in Honor of Friedrich
K. Juenger, P. Borchers and J. Zekoll (eds.), 125 (2000).
–, “On the Side of the Angels : Choice of Law and Stolen Cultural Property”, in
Private Law in the International Arena – Liber Amicorum Kurt Siehr, J. Basedow
et al. (eds.), 649 (2000).
–, “The Need for a Third Conflicts Restatement, and a Proposal for Tort Conflicts”,
75 Ind. LJ 437 (2000).
–, “Covenant Marriage and the Conflict of Laws”, with K. Spaht, 32 Creighton L.
Rev. 1085 (1999).
–, “The Judicial Acceptance of the Second Conflicts Restatement : A Mixed
Blessing”, 56 Md. L. Rev. 1246 (1997).
–, “Resolving Six Celebrated Conflicts Cases through Statutory Choice-of-Law
Rules”, 47 Mercer L. Rev. 837 (1997).
–, “Louisiana Conflicts Law : Two ‘Surprises’ ”, 54 La. L. Rev. 497 (1994).
–, “The ALI’s Complex Litigation Project : Commencing the National Debate”, 54
La. L. Rev. 843 (1994).
–, “Exception Clauses in American Conflicts Law”, 42 Am. J. Comp. L. 813 (1994).
–, “Private International Law Codification in a Mixed Jurisdiction : The Louisiana
Experience”, 57 RabelsZ 460 (1993).
–, “Louisiana’s New Law of Choice of Law for Tort Conflicts : An Exegesis”, 66
Tul. L. Rev. 677 (1992).
–, “Revising Puerto Rico’s Conflicts Law : A Preview”, 28 Colum. J. Transn’l L.
413 (1990).
–, “Choice of Law in the American Courts in 1988”, 37 Am. J. Comp. L. 457 (1989).
–, “Exploring the ‘Dismal Swamp’ : Revising Louisiana’s Conflicts Law on
Successions”, 47 La. L. Rev. 1029 (1987).
–, “In Search of New Choice-of-Law Solutions to Some Marital Property Problems
of Migrant Spouses : A Response to the Critics”, 13 Com. Prop. J. 11 (1986).
–, “Revolution and Counter-Revolution in American Conflicts Law : Is there a
Middle Ground ?”, 46 Ohio St. LJ 549 (1985).
–, “Maritime Conflicts Law from the Perspective of Modern Choice of Law
Methodology”, 7 Mar. Law. 223 (1982).
Symeonides S., and W. Perdue, Conflict of Laws : American, Comparative,
International, 3rd ed., 2012.
Symposium, “Beyond the State ? Rethinking Private Law”, 56 Am. J. Comp. L. 527
(2008).
Symposium, “Current Debates in the Conflict of Laws”, 153 U. Pa. L. Rev. 1815
(2005).
Symposium, “Restatement and Reform”, 32 S. Ill. U. LJ 1 (2007).
Symposium, “The New European Choice-of-Law Revolution : Lessons for the
United States”, 82 Tul. L. Rev. 1607 (2008).
Symposium, “Transdisciplinary Conflict of Laws”, 71.3 L. & Contemp. Probs. 1
(2008).
Tang, Z., “Private International Law in Consumer Contracts : A European Per-
spective”, 6 J. Priv. Int’l L. 225 (2010).
–, “Law Applicable in the Absence of Choice – The New Article 4 of the Rome I
Regulation”, 71 Mod. L. Rev. 785 (2008).
Tarman, Z. D., “The Law Applicable to Contractual and Non-Contractual Obligations
under Turkish Private International Law”, 27 Nederl. Int’l PrvR. 15 (2009).
Taylor, D., “Libel Tourism : Protecting Authors and Preserving Comity”, 99 Geo.
LJ 189 (2010).
Tekinalp, G., “The 2007 Turkish Code concerning Private International Law and
International Civil Procedure”, 9 Ybk. Priv. Int’l L. 313 (2008).
Ten Wolde, M., “Codification and Consolidation of Dutch Private International
Law : The Book 10 Civil Code of the Netherlands”, 13 Ybk. Priv. Int’l L. 389
(2011).
Tetley, W., “A Canadian Looks at American Conflict of Law Theory and Practice,
Especially in Light of the American Legal and Social Systems, Corrective vs.
Distributive Justice”, 38 Colum. J. Transn’l L. 299 (1999).
Thomson, M., “Method or Madness ? : The Leflar Approach to Choice of Law as
Practiced in Five States”, 66 Rutgers L. Rev. 81 (2013).
Thue, H., “Norwegian Private International Law at the End of the 20th Century :
Tolani, M., “U.S. Punitive Damages before German Courts : A Comparative Analysis
with Respect to the Ordre Public”, 17 Ann. Surv. Int’l & Comp. L. 185 (2011).
Tötterman, R., The Scope of the Rule “Locus Regit Actum” in the Conflict of Laws,
2007.
Trautman, D., “Toward Federalizing Choice of Law”, 70 Tex. L. Rev. 1715 (1992).
–, “A Comment on Twerski and Mayer : A Pragmatic Step towards Consensus as a
Basis for Choice-of-Law Solutions”, 7 Hofstra L. Rev. 833 (1979).
–, “The Relation between American Choice of Law and Federal Common Law”, 41
Law and Contemp. Prob. 105 (1977).
–, “Two Views on Kell v. Henderson : A Comment”, 67 Colum. L. Rev. 465 (1967).
Traynor, M., “The First Restatements and the Vision of the American Law Institute,
Then and Now”, 32 S. Ill. U. LJ 145 (2007).
–, “A Heavenly Inquiry from Professor Juenger”, in Juenger, Special ed., xi, 2005.
–, “Conflict of Laws, Comparative Law, and the American Law Institute”, 49 Am.
J. Comp. L. 391 (2001).
Traynor, R., “Is this Conflict Really Necessary ?”, 37 Tex. L. Rev. 658, 670 (1959).
Trooboff, P. D., “The Growing Interaction between Private and Public International
Law”, 6 Hague Ybk. Int’l L. 107 (1994).
Tsouka, C., Les lois étrangères d’application immédiate et leur impact sur la nature
méthodologiques du droit international privé, 1997.
Tu, G., “The Codification of Conflict of Laws in China : What Has/Hasn’t Yet Been
Done for Cross-border Torts ?”, 14 Ybk. Priv. Int’l L. 341 (2013).
–, “China’s New Conflicts Code : General Issues and Selected Topics”, 59 Am. J.
Comp. L. 563 (2011).
Tu, G., and M. Xu, “Contractual Conflicts in the People’s Republic of China : The
Applicable Law in the Absence of Choice”, 7 J. Priv. Int’l L. 179 (2011).
Tuininga, K., “Cuban Private International Law : Some Observations, Comparisons,
and Suppositions”, 40 U. Miami Inter-Am. L. Rev. 433 (2009).
Twerski, A., “One Size Does Not Fit All : The Third Multi-Track Restatement of
Conflict of Laws”, 75 Ind. LJ 667 (2000).
–, “A Sheep in Wolf’s Clothing : Territorialism in the Guise of Interest Analysis in
Cooney v. Osgood Machinery, Inc.”, 59 Brook. L. Rev. 1351 (1994).
–, “With Liberty and Justice for All : An Essay on Agent Orange and Choice of
Law”, 52 Brook. L. Rev. 341 (1986).
–, “Neumeier v. Kuehner : Where Are the Emperor’s Clothes ?”, 1 Hofstra L. Rev.
93 (1973).
–, “Enlightened Territorialism and Prof. Cavers – The Pennsylvania Method”, 9
Duq. L. Rev. 373 (1971).
Twerski, A., and N. B. Cohen, Choice of Law : Cases and Materials for a Concise
Course on Conflict of Laws, 2015.
Uhlířová, P., “New Private International Law in the Czech Republic”, 16 Ybk. Priv.
Int’l L. 469 (2014-2015).
Valladão, H., “The Influence of Joseph Story on Latin-American Rules of Conflict

of Laws”, 3 Am. J. Comp. L. 27 (1954).
Vallindas, P., “La structure de la règle de conflit”, 101 Recueil des cours 327 (1960).
Van Calster, G., European Private International Law, 2013.
Van Den Eeckhout, V., “The Instrumentalisation of Private International Law –
Quo Vadis ? Rethinking the ‘Neutrality’ of Private International Law in an Era of
Globalisation and Europeanisation of Private International Law”, in J. S. Bergé,
S. Francq and M. Gardenes Santiago (eds.), Boundaries of European Private
International Law. Les frontières de droit international privé européen. Las
fronteras del derecho internacional privado europea, 2015.
Van Loon, H., “The Hague Conference on Private International Law : Work in
Progress, 2008-2010”, 12 Ybk. Priv. Int’l L. 419 (2010).
Vassilakakis, E., “Recent Private International Law Codifications”, 63 Rev.
hellénique dr. int’l 103 (2010).
Venturini, G., and S. Bariatti (eds.), Nuovi Strumenti del Diritto Internazionale :
Liber Fausto Pocar, 2009.
Verhoeven, J., “Droit international privé et droit international public : Où est la
difference ?”, Arch. Philos. Dr. 23 (1987).
Vischer, F., “New Tendencies in European Conflict of Laws and the Influence of
the US-Doctrine – a Short Survey”, in Law and Justice in a Multistate World :
Essays in Honor of Arthur T. von Mehren, J. Nafziger and S. Symeonides (eds.),
459, (2002).
–, “Lois d’application immediate als Schranken von Gerichsstands‑und
Schiedsvereinbarungen”, in A. Overbeck et al. (eds.), Collisio Legum : Studi di
diritto internazionale privato per Gerardo Broggini, 577 (1997).
–, “General Course on Private International Law”, 232 Recueil des cours 9 (1992).
–, “Drafting National Legislation on Conflict of Laws : The Swiss Experience”, 41
Law & Contemp. Prob. 131 (1977).
Vitta, E., “The Impact in Europe of the American ‘Conflicts Revolution’ ”, 30 Am.
J. Comp. L. 1 (1982).
–, “Cours général de droit international privé”, 162 Recueil des cours 9 (1979).
Volken, P., “Wenn Wächter mit Story”, in J. Basedow et al. (eds.), Private Law in
the International Arena – Liber Amicorum Kurt Siehr 815 (2000).
Von Bar, C., “Environmental Damage in Private International Law”, 268 Recueil
des cours 291 (1997).
Von Hein, J., “Protecting Victims of Cross-Border Torts under Article 7 No. 2
Brussels Ibis : Towards a More Differentiated and Balanced Approach”, 16 Ybk.
Priv. Int’l L. 241 (2014-2015).
–, “The Contribution of the Rome II Regulation to the Communautarization
of Private International Law”, 73 RabelsZ 461 (2009). “Something Old and
Something Borrowed, but Nothing New ? Rome II and the European Choice-of-
Law Evolution”, 82 Tul. L. Rev. 1663 (2008).
Von Mehren, A., “American Conflicts Law at the Dawn of the 21st Century”, 37
–, “Choice of Law and the Problem of Justice”, 41 Law & Contemp. Prob. 27
(1977).
–, “Recent Trends in Choice-of-Law Methodology”, 60 Cornell L. Rev. 927
(1975).
–, “Special Substantive Rules for Multistate Problems : Their Role and Significance
in Contemporary Choice of Law Methodology”, 88 Harv. L. Rev. 298 (1974).
–, “Conflict of Laws in a Federal System : Some Perspectives”, 18 Int. and Comp.
LQ 681 (1969).
–, “Book Review”, 17 J. Legal Ed. 91, 1964, reviewing B. Currie, Selected Essays
on the Conflict of Laws (1963).
–, “The Renvoi and Its Relation to Various Approaches to the Choice-of-Law
Problem”, XXth Century Comparative and Conflicts Law 380 (1961).
Von Overbeck, A., “De quelques règles générales de conflit de lois dans les
codifications récentes”, in Private Law in the International Arena – Liber

Amicorum Kurt Siehr, J. Basedow et al. (eds.), 545 (2000).
–, “The Fate of Two Remarkable Provisions of the Swiss Statute on Private
International Law”, 1 Ybk, of Priv. Int’l L. 119 (1999).
–, “Les questions générales du droit international privé à la lumière des codifications
et projets récents”, 176 Recueil des cours 9 (1982).
Vorobieva, O., Private International Law in Russia, 2nd ed., 2015.
Voser, N., Die Theorie der Lois d’application immediate Im Internationalen
Privatrecht, 1993.
Voulgaris, I., “Réflexions sur l’approche comparative de la qualification en droit
international privé”, in Mélanges en l’honneur de Denis Tallon, 193 (1999).
Vrellis, S., Private International Law in Greece, 2011.
–, “Introductory Observations to Private International Law”, in A. S. Georgiadis
and M. P. Stathopoulos (eds.), Civil Code, Article by Article Interpretation,
Vol. IA, 2016 (in Greek).
–, “Conflit ou coordination de valeurs en droit international privé – A la recherche
de la justice”, 328 Recueil des cours 175 (2007).
–, “Le droit international privé grec vers la fin du vingtième siècle : progrès ou
recul ?”, in S. Symeonides, Private International Law at the End of the 20th
–, “La justice ‘matérielle’ dans une codification du droit international privé”, in
E Pluribus Unum, Liber Amicorum Georges Droz, 541, The Hague, 1996.
Watson, A., Joseph Story and the Comity of Errors : A Case Study in Conflict of
Laws, 1992
Weinberg, L., “A Radically Transformed Restatement for Conflicts”, 2015 U. Ill. L.
Rev. 1999 (2015).
–, “Theory Wars in the Conflict of Laws (reviewing Symeonides, The American
Choice-of-Law Revolution in the Courts : Today and Tomorrow)”, 103 Mich. L.
Rev. 1631 (2005).
–, “Of Theory and Theodicy : The Problem of Immoral Law”, in J. Nafziger and
S. Symeonides (eds.), Law and Justice in a Multistate World : Essays in Honor
of Arthur T. von Mehren 473 (2002).
–, “A Structural Revision of the Conflicts Restatement”, 75 Ind. LJ 475 (2000).
–, “Choosing Law and Giving Justice”, 60 La. L. Rev. 1361 (2000).
–, “Mass Torts at the Neutral Forum : A Critical Analysis of the ALI’s Proposed
Choice Rule”, 56 Alb. L. Rev. 807 (1993).
–, “The Place of Trial and the Law Applied : Overhauling Constitutional Theory”,
59 U. Colo. L. Rev. 67 (1988).
–, “On Departing from Forum Law”, 35 Mercer L. Rev. 595 (1984).
Weinstein, J., “Mass Tort Jurisdiction and Choice of Law in a Multinational World
Communicating by Extra-Terrestrial Satellites”, 37 Willamette L. Rev. 145 (2000).
–, “Ethical Dilemmas in Mass Tort Litigation”, 88 Nw. UL Rev. 469 (1994).
Weintraub, R. J., Commentary on the Conflict of Laws, 6th ed., 2010.
–, “The Choice-of-Law Rules of the European Community Regulation on the
Law Applicable to Non-Contractual Obligations : Simple and Predictable,
Consequences-Based, or Neither ?”, 43 Tex. Int’l LJ 401 (2008).
–, “Rome II and the Tension between Predictability and Flexibility”, in Festschrift
Peter Hay 451 (2005).
–, “Getting the Conflict of Laws Y2K Ready”, 37 Willamette L. Rev. 157 (2000).
–, “The Restatement Third of Conflict of Laws : An Idea Whose Time Has Not
Come”, 75 Ind. LJ 679 (2000).
–, “Flailing in the Waters of the Louisiana Conflicts Code : Not Waving but
Drowning”, 60 La. L. Rev. 1365 (2000).
–, “Choice of Law for Products Liability : Demagnetizing the United States Forum”,
52 Ark. L. Rev. 157 (1999).
–, “‘At Least to Do No Harm’ : Does the Second Restatement of Conflicts Meet the
Hippocratic Standard ?”, 56 Md. L. Rev. 1284 (1997).
–, “An Approach to Choice of Law that Focuses on Consequences”, 56 Alb. L. Rev.
701 (1993).
–, “The Contributions of Symeonides and Kozyris to Making Choice of Law
Predictable and Just : An Appreciation and Critique”, 38 Am. J. Comp. L. 511
(1990).
–, “A Proposed Choice-of Law Standard for International Products Liability
Disputes”, 16 Brook. J. Int’l L. 225 (1990).
–, “Methods for Resolving Conflict-of-Laws Problems in Mass Tort Litigation”, U.
Ill. L. Rev. 129 (1989).
–, “Interest Analysis in the Conflict of Laws as an Application of Sound Legal
Reasoning”, 35 Mercer L. Rev. 629 (1984).
–, “Functional Developments in Choice of Law for Contracts”, 187 Recueil des
cours 239 (1984).
Westbrook, J. L., “Universalism and Choice of Law”, 23 Penn St. Int’l L. Rev. 625
(2005).
Westrik, R., and J. van der Weide (eds.), Party Autonomy in International Property
Law, 2011.
Whitten, R., “Curing the Deficiencies of the Conflicts Revolution : A Proposal
for National Legislation on Choice of Law, Jurisdiction, and Judgments”, 37
–, “Improving the Better Law System : Some Impudent Suggestions for Reordering
and Reformulating Leflar’s Choice-influencing Considerations”, 52 Ark. L. Rev.
177 (1999).
Whytock, C. A., “The Evolving Forum Shopping System”, 96 Cornell L. Rev. 481
(2011).
–, “Myth of Mess ? International Choice of Law in Action”, 84 NYU L. Rev. 719
(2009).
Wiegand, S., “Fifty Conflict of Laws ‘Restatements’ : Merging Judicial Discretion
and Legislative Endorsement”, 65 La. L. Rev. 1 (2004).
Wiethölter, R., “Begriffs- und Interessenjurisprudenz – falsche Fronten im IPR”, in
G. Kegel, H.-J. Musielak and K. Schurig, Festschrift für Kegel, 213 (1977).
–, “Vorbemerkungen zum IPR”, in Deutscher Rat für IPR Erbrechtskommission,
Internationales Nachlaßverfahrensrecht, Vorschläge und Gutachten zur Reform
des deutschen internationalen Erbrechts 142 (1969).
Wilderspin, M., “The Rome II Regulation ; Some Policy Observations”, 2008
Nederl. IPR. 408 (2008).
Wojewoda, M., “Mandatory Rules in Private International Law”, 7 Maastricht J.
Eur. & Comp. L. 183 (2000).
Wolff, L. C., “Flexible Choice-of-Law Rules : Panacea or Oxymoron ?”, 10 J. Priv.
Int’l L. 431 (2014).
–, “China’s Private International Investment Law : One-Way Street into PRC
Law ?”, 56 Am. J. Comp. L. 1039 (2008).
Wolfrum, R., and N. Matz, Conflicts in International Environmental Law, 2011.
Wurmnest, W., “Foreign Private Plaintiffs, Global Conspiracies, and the
Extraterritorial Application of U.S. Antitrust Law”, 28 Hastings Int’l & Comp.
L. Rev. 205 (2005).
Xiao, Y., and Z. Hou, “Ordre Public in China’s Private International Law”, 53 Am.
J. Comp. L. 653 (2005).
Yntema, H., “The Comity Doctrine”, 65 Mich. L. Rev. 9 (1966).
–, “The Historic Bases of Private International Law”, 2 Am. J. Comp. L. 297 (1953).
–, “The Hornbook Method and the Conflict of Laws”, 37 Yale LJ 468 (1928).
Zaremby, J., “Restating the Restatement of Conflicts : Approaching the Legitimacy
Question in Choice-of-Law Theory”, 45 Suffolk U. L. Rev. 67 (2011).
Zhang, M., “Rethinking Contractual Choice of Law : An Analysis of Relation
Syndrome”, 44 Stetson L. Rev. 831 (2015).
–, “Codified Choice of Law in China : Rules, Processes and Theoretic
Underpinnings”, 37 N.C. J. Int’l L. & Com. Reg. 83 (2011).
–, “Party Autonomy in Non-Contractual Obligations : Rome II and Its Impacts on

Choice of Law”, 39 Seton Hall L. Rev. 861 (2009).
Zhengxin, H., “Two Steps Forward, One Step Back : A Commentary on the Judicial
Interpretation on the Private International Law Act of China”, 43 Hong Kong LJ
685 (2013).
Zweigert, K., “Zur Armut des internationalen Privatrechts an sozialen Werten”, 37
RabelsZ 435 (1973).
–, “Some Reflections on the Sociological Dimensions of Private International Law
or : What Is Justice in the Conflict of Laws ?”, 44 U. Colo. L. Rev. 283 (1973).

Private International Law: Idealism, Pragmatism, Eclecticism

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PRIVATE INTERNATIONAL LAW :

IDEALISM, PRAGMATISM, ECLECTICISM

C. Are state interests ascertainable ?. . . . . . . . . . . . . . . . . . . 109

D. The unilaterality of multilateralism. . . . . . . . . . . . . . . . . . 186

(c) Court choice for the benefit of children and other weak

C. Dépeçage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305

Symeon C. Symeonides, born 1949 in Lythrodontas, Cyprus.

Articles in Law Reviews and Chapters in Books

Lex Mercatoria that Isn’t”, in Festschrift für Konstantinos D. Kerameus 1397

“Les grands problèmes de droit international privé et la nouvelle codification de

Codif. : Refers to any choice-of-law statute, regardless of its formal designation as

Restatement (First) : American Law Institute, Restatement of the Law : Conflict of

Symeonides, “Oregon Torts Exegesis” : S. Symeonides, “Oregon’s New Choice-of-

Weintraub, Commentary : R. Weintraub, Commentary on the Conflict of Laws

Maintenance Regulation : Council Regulation (EC) No. 4/2009 of 18 December 2008

Sales : Hague Convention of 22 December 1986 on the Law Applicable to Contracts

Powers of Attorney : Inter-American Convention on the Legal Regime of Powers of

This volume is written in fulfilment of the requirements of The Hague

1. G. Gaja, “The Protection of General Interests in the International Community :

Chapters VII and VIII discuss two relatively recent phenomena

4. For volumes on American PIL by this author, see S. Symeonides, Oxford

Section 1. Introduction

In the tradition of The Hague Academy, a “general course” on

The history of PIL is one of continuous change, resulting from a three-

Third Millennium : Liber in Memoriam of Professor Friedrich K. Juenger 81 (2006) ;

other labels” 11, or “[T]he same components of conflicts solutions have

Section 2. From Ancient Greece to Medieval Italy

The prevailing opinion among western authors is that PIL originated

11. K. Nadelmann, “Marginal Remarks on the New Trends in American Conflicts

and answered both through a pre-established rule. By contrast, the

Section 3. Early Footings : Bartolus, Statutists, and Unilateralism

One Commentator, Bartolus of Sassoferrato (1313-1357), attempted to

Conflict of Laws (2015) ; Juenger, Multistate Justice 10-19 ; H. Kantorowicz and

Bartolus, along with later scholars collectively known as “statutists”,

on the statute’s wording. Subsequent critics derided this reliance. They

26. Hatzimihail, “Bartolus and the Conflict of Laws”, at 27.

Section 4. Huber’s Comity

During the fifteenth and sixteenth centuries, other Italian as well as

36. Author’s paraphrase from several sources.

Huber’s axioms exerted a strong influence on both English and

Section 5. The Nineteenth Century : The Classical PIL Edifice

In 1828, Samuel Livermore (1786-1833), a civil-law lawyer from

42. F. K. Juenger, “How Do You Rate a Century ?”, 37 Willamette L. Rev. 89, 91

law. Livermore helped advance Story’s work by providing, in his own

After”, 48 Harv. L. Rev. 15 (1934) ; K. H. Nadelmann, “Joseph Story’s Contribution

statutist doctrine but embraced Huber’s axioms and comity principle,

51. Story, Commentaries, at 19, 21, 24-25, 37.

the small public law element in a treatise otherwise dedicated to

Before discussing Savigny, brief mention must be made of another

52. R. Michaels, “Joseph Story”, in J. Basedow et al. (eds.), Encyclopedia of PIL

because he cleared the deck of the old doctrines, freeing Savigny to

C. Savigny and multilateralism

Wächter, Savigny rejected the statutist doctrine, but (unlike Wächter)

Law, and the Challenge of Europeanization and Globalization”, in M. Stolleis and

67. See infra, Chap. III.3.

“It is the necessary consequence of this principle . . . not only

75. Savigny, Treatise, at 27.

Exception (B) was a partial restatement of the public policy excep-

D. Other nineteenth-century scholars

80. See infra, Chap. V.4.B.

(1835-1922) 87, Carl Ludwig von Bar (1836-1913) 88, Ernst Zitelmann

Section 6. The Twentieth Century

tinkered on the margins, the second half witnessed the appearance

(3) The Restatement was a comprehensive and complete system.