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 PRIVATE INTERNATIONAL LAW OR
INTERNATIONAL PRIVATE LAW?"

FRIEDRICH K. JUENGER*

I. INTRODUCTION
Throughout the world-and here in the United Kingdom '-"private
international law" is the preferred name for the subject Americans
are accustomed to calling "the conflict of laws". The term "private
international law" has inspired much discussion, with practically
everybody who talks about it taking the position that it is a
misnomer on several scores.2 For purposes of my talk, however, this
term-which Joseph Story invented 3-is helpful. It enables me to
contrast "private international law" with "international private law",
an expression the Uruguayan conflicts scholar Quintin Alfonsin
coined to connote an alternative to customary conflicts thinking.4
I have of course not come here to lecture about nomenclature.
Rather, my juxtaposition of the two turns of phrase serves a
substantive purpose, namely to shed doubt on some deep-seated
assumptions that underlie the conventional terminology.
Take for instance, "choice of law" or "conflict of laws", terms
often used to signify private international law in the narrow sense,
i.e. excluding jurisdiction and judgments recognition. Both of them
insinuate that the judge or arbitrator must make a selection from
among the "conflicting" laws of different states and nations. In other
words, this terminology implies that problems created by transactions
that transcend state or national boundaries can only be resolved by
picking one or the other domestic law. As one reads in Cheshire and
North, it is the objective of private international law "to determine
for -each class of case the particular municipal system of law by
reference to which the rights of the parties must be ascertained".'
f This article is based on the Graveson Memorial Lecture 1994 in memory of
Professor R. H. Graveson C.B.E., Q.C., delivered on May 4, 1994 at King's College,
London.
* Barrett Professor of Law, University of California at Davis; Honorary President,
American Society of Comparative Law.
But see I Dicey and Morris, The Conflict of Laws (12th ed. 1993) 33.
2 See, e.g., id; Cheshire and North, Private International Law (12th ed. 1992)
12-13; M. Wolff, Private International Law (2d ed. 1950) 10.
See J. Story, Commentaries on the Conflict of Laws (2d ed. 1841) 11.
4 See Q. Alfonsin, Teoria del Derecho Privado Internacional(1955) 46-47 (using the
terms "Derecho internacional privado" and "Derecho privado internacionaf' to
distinguish between the conflictual and the supranational approaches to the subject).
' Cheshire and North, above note 2, at 3.
 The King's College Law Journal

Moreover, according to the conventional wisdom, private inter-

national law is wholly municipal not only in the sense that it submits
multistate transactions to national laws, but also as regards its own
rules, which-unlike those of public international law-differ from
one nation to the next.
Thus, in contrast to the Roman praetor peregrinus and the English
admirality courts of yore,6 judges no longer search for universal rules
to govern private transactions that transcend territorial boundaries.
Instead, according to the communis opinio doctorum, unless treaties
or conventions furnish the applicable rules, the only law to govern
such transactions is that of a state or nation. Whereas earlier
scholars, such as Story, Savigny and Mancini, still believed that
universal principles control the selection from among municipal
laws, 7 that idea was scuttled in the twentieth century. 8 Nowadays
most legal writers agree that choice-of-law rules-once again, of
course, with the exception of those found in international compacts-
are purely domestic in nature, and that each nation is free to
establish their own. Since the very name of our subject, "private
international law", has become identified with this assumption,9 it is
necessary to use a different one-such as "international private
law"-to convey the idea that transnational legal problems can also
be resolved by developing a supranational body of private law.

II. SAVIGNY'S LEGACY

(a) The multilateralapproach
If you think about it, it is really quite remarkable that we subject
transactions that are international in nature to the vagaries of
municipal laws. How can rules made for domestic consumption
satisfactorily resolve the issues posed by world-wide activities? And
how do we decide which of the various municipal laws applies to a
particular international tort or contract? The German jurist's
universalist conception of private international law may be dead, but
as far as the approach to transnational problems is concerned, one
still reads in a major English treatise that "the method adopted in
6 See F. Juenger, Choice of Law and Multistate Justice (1993) 8-10, 23-24.
7 See P. Mayer, Droit internationalprivi (4th ed. 1991) 54-55. As Mayer observes,
"Jusqu'i lafin du XIX' sircle, presque tous les auteurs sont universalistes". Id. at 54.
' See id. at 56 (citing Anzilotti, Bartin and Kahn); Wolff, above note 2, at 12-13;
see also J.Collier, Conflict of Laws (1987) 359-66.
"Those who start from the idea that the law with which we are concerned has as
its object the resolution of "conflicts of laws" must call that law "private
international law", a term that is the successor to the old "law of conflicts". That
name indicates, in effect, that the norms of that law realise an international
function; to delineate [legislative] competences among the laws of various states,
and that this function is limited to private law".
Alfonsin, above note 4, at 47.
 Private InternationalLaw or International Private Law? 47

practice by English courts corresponds in general with that suggested

by Savigny".' 0 His method, as Cheshire and North describe it,
attempts "to decide each case according to the legal system to which
it seems most naturally to belong"." But how can one tell to which
national legal system a transaction that transcends national
boundaries belongs? Savigny himself confessed that allocating each
case--or, in his words, each "legal relationship"-to the legal system
to which it belongs, 2 where it has its "seat",' 3 is but a "formal
principle"' 4 that does not resolve actual controversies.
Savigny did, however, tell us how to find a home, or a seat, for
such transnational intangibles: one simply links various categories of
legal relationships to a given territory by means of certain contacts
they have with a particular territory. 5 Typecasting legal relationships
is easy: to order the untidy world of law, every legal system classifies
rules and institutions by establishing such categories as contracts,
torts, property, domestic relations and so on.' 6 The contacts available
to localise legal relationships include domicile for personal relations
(such as those created by family law), the situs for things, and the
place where a contract is made or performed. Attaching these
localisers to the various categories, Savigny constructed a simple and
elegant system that promptly selects the governing law for any
conceivable legal relationship arising anywhere in the world. The
Latin phrases symbolising its rules, e.g., lex loci delicti commissi, lex
situs, lex domicilii, helped endear the system to academics.
(b) Multilateralism triumphant
Although his book on private international law has been hailed as
an impressive intellectual achievement, Savigny was not entirely
original. Many of the rules he advocated had been known since the
Middle Ages,' 7 and the spade work for his approach had already
been done by Joseph Story, whose Commentaries Savigny had read
and liked.' 8 But Savigny's system signalled the dawn of a new era
because it substituted a new approach for that of the statutists. These
earlier conflicts scholars did not attempt to find a home or seat for
legal relationships; rather, they pondered the spatial reach of
substantive rules' 9 (as we still do when we discuss the "extra-
territorial" reach of regulatory laws). Although Savigny acknowl-
edged the validity of this "unilateral" approach-and in fact believed
10 Cheshire and North, above note 2, at 23.
Id. See also Wolff, above note 2, at 36.
12 8 F. von Savigny, System des heutigen Rimischen Rechts (1849) 28, 32, 108.
Id. at 1, 2-3, 28, 108.
I3
14 id. at 120, 121.
'5 See id. at 95, 100-101, 120-21.
16 See id. at 108.
I7 See Juenger, above note 6, at 37.
IS See Savigny, above note 12, at iv; Wolff, above note 2, at 35.
'9 See Juenger, above note 6, at 14-15; Wolff, above note 2, at 21-30.
 The King's College Law Journal

that it was but the flip-side of his own2-in reality his method
signalled a sea-change in private international law. His scheme of
allocating legal relationships to a territory-known as the "bilateral"
or "multilateral" approach 21-became trimphant throughout the
world. As the passage I quoted from Cheshire and North shows, to
this very day jurists find it to be both attractive and persuasive.
Unlike unilateralism, the multilateral approach does not furnish a
direct solution by applying domestic substantive law "extra-
territorially". Instead, it interposes a body of choice-of-law rules
between legal relationships and the world's legal systems. To use
Cheshire and North's helpful simile, private international law
"resembles the inquiry office at a railway station where a passenger
may learn the platform at which his train starts".22 The
difference between the two approaches has important consequences.
Unilateralism is characterised by an inherent homing tendency
because the inquiry about the spatial reach of municipal law tends
to start, and usually ends, with the law of the forum. Savigny's
system, in contrast, evinces an urbane neutrality. Rather than looking
at the content of competing substantive rules, it selects the applicable
law on the basis of extraneous criteria, namely the connecting factors
that link a given legal relationship with a particular jurisdiction.
Accordingly (at least in theory) the multilateral approach does not
favour the lex fori or any other legal system. Only in extreme cases,
namely when it violates the forum's public policy, are courts allowed
to refuse application of the foreign law that the forum's choice-of-
law rule invokes.

(c) Decisionalharmony
His system's pleasing symmetry and simplicity, as well as the policy
that informed Savigny's approach, had a strong appeal. The even-
handed selection of the applicable law on the basis of objective
criteria holds forth the promise that a case will be decided in the
same manner irrespective of where it is litigated. Put negatively, the
multilateral approach was expected to curtail forum shopping.
Indeed, the prevention of this practice was the purpose Savigny
pursued in framing multilateral rules. As he said:

"In many conflicts cases there is concurring jurisdiction in different

places, so that in a particular case the plaintiff is free to choose the
forum. Accordingly, if [forum law is favoured] ...the local law
.applicable in each case depends not only on fortuitous circumstances,
20 See Savigny, above note 12, at 3.
2 See Juenger, above note 6, at 13. Wolff, above note 2, at 96-97, speaks of "one-
sided" and "all-sided" rules.
22 Cheshire and North, above note 2, at 8.
 Private InternationalLaw or International Private Law? 49
but on the litigant's unilateral choice. A principle, however, whose
application leads to such a result cannot possibly be considered just."23

In contrast, his method had the objective of assuring the "conformity

of the decision in conflicts cases in different states".24 That anti-
forum shopping policy, or-to use the civilian term-the goal of
"decisional harmony",25 strongly appeals to those who yearn for
certainty and predictability.

III. THE FLAWS OF THE MULTILATERAL SYSTEM

(a) Differences of opinion

Alas, what Savigny bequeathed us turned out to be fool's gold. Ever
the optimist, he believed that his approach-down to the last detail-
would be acceptable to every state and nation. Obviously, however,
one 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. For instance, to protect the surviving spouse's interests a
particular legal system can choose from among a variety of devices,
including dower rights, community property and succession rules.
Similarly, there will be differences of opinion about the most
appropriate connecting factor. Common law jurisdictions, for
example, follow the rule that the succession to immovables is
governed by the law of the situs. As plausible as this rule may be, it
is hardly irrational if many civil law systems opt for the decedent's
personal law (i.e. that of his last domicile or nationality) to ensure
that all of his assets pass in the same manner.
Hence Savigny's hope for a "completely identical treatment of our
theory in all states"26 was bound to be disappointed. Far from
resolving the problems caused by interstate and international
transactions simply and elegantly, because of differences in the
classification of legal relationships and in the choice of connecting
factors his system created complex conundrums. Disparities in
categorising legal relationships engendered the "characterisation" or
"classification" problem,2 7 and differences in connecting factors begot
the dreaded renvoi.28 In addition, states and nations differ on whether
to apply the public policy reservation broadly or narrowly, 29 and
23 Savigny, above note 12, at 129.
24 Id.
25 See, e.g., M. Keller and K. Siehr, Allgemeine Lehren des internationalen
Privatrechts (1986) 57 ("Entscheidungsharmonie"); Mayer, above note 7, at 55
("harmonie des solutions"); Wolff, above note 2, at 4, 16 ("harmony of laws").
26 Savigny, above note 12, at 114.

21 See Collier, above note 8, at 13, 15-21; Juenger, above note 6, at 71-74.
28 See Collier, above note 8, at 13, 21-29; Juenger, above note 6, at 77-79.
29 See Juenger, above note 6,at 80-81.
 The King's College Law Journal

even the same court may hand down inconsistent decisions.3 ° Nor
are these the only self-inflicted embarrassments to trouble the
classical system. For instance, attempts to classify legal issues in a
manner more discerning than by recourse to Savigny's broad
categories have spawned such puzzles as the "incidental question"
and "dpeage".3

(b) Unpalatableresults
In practice, therefore, Savigny's system has failed to produce the
expected certainty and predictability. Not forum-proof uniformity,
but vacillation, uncertainty and confusion are the hallmarks of
private international law; after almost a century and a half of
experimentation, the ideal of decisional harmony remains as remote
as ever. Prosser's caustic description of the field as a "dismal
swamp" 32 is not unique; generations of scholars and practitioners
have been heard to voice similar complaints.33 Instead of the
"identical treatment" Savigny hoped for, the legal systems that
follow his multilateral methodology diverge from one another on
basics-such as the question whether domicile or nationality is the
better connecting factor-as well as on countless details. A recent
wave of codifications, intended to bring a semblance of order to the
prevailing chaos, has instead further balkanised European private
international law, and the, results of efforts to achieve greater
coherence by means of international conventions have been quite
disappointing.
Not only does the classical multilateral approach fail to deliver
uniform results, the results it does deliver are frequently unpalatable.
Single-mindedly pursuing the goal of decisional harmony, that
approach disregards other legal values. Savigny hypothesised that all
legal systems are of equal dignity, and that each and every municipal
rule is entitled to the same respect. -A system that proceeds from
these premises obviously lacks quality control. At a certain point,
however, the pretence that geography trumps justice and that private
international law cannot be judged by the results it produces can no
longer be maintained. This explains the need for the public policy
reservation, a desperate but necessary remedy against blatant
iniquities. As Lorenzen put it, the "doctrine of public policy ...
ought to have been a warning that there was something the matter
30 Compare Mertz v. Mertz, 3 N.E.2d 597 (N.Y. 1936) with Loucks v. Standard Oil
Co., 120 N.E.2d 198 (N.Y. 1918). See Cheshire and North, above note 2, at
128-30.
31 See Juenger, above note 6, at 74-76.
32 W. Prosser, "Interstate Publication", 51 Mich. L. Rev. (1953) 959, 971.
3 Thus d'Argentr6 already complained that "befuddled conflicts professors leave
their students even more befuddled". B. d'Argentr6, Commentarii in PatriasBritonum
leges (3d ed. 1621) tit. XII art. 218, gloss 6, No. I at 675.
 Private InternationalLaw or InternationalPrivate Law? 51

with the reasoning upon which the rules to which it is the exception
were supposed to be based".34 This statement may not be very
elegantly worded; but there is surely something wrong with choice-
of-law rules that not only fail to guarantee uniformity but
indiscriminately import the good with the bad.

(c) The normativeforce offact

Traditionalists are wont to maintain that unpalatable results are
simply the price their system exacts, and that this price is worth
paying.3" This has also been the attitude of many judges who, dealing
with conflicts questions, have shrugged off iniquitous decisions by
invoking the hoary adage dura lex sed lex.36 But such nonchalance
can be maintained only as long as interstate and international
transactions are few and far between. When transfrontier dealings
reach a certain quantitative threshold, the propensity of mechanical
choice-of-law rules to produce untoward outcomes is bound to
induce a legislative or judicial scrutiny of the traditional insensitive
choice-of-law rules. Modern means of transportation, and the
accidents they cause, are apt to raise questions about the desirability
of applying substandard foreign law in conflicts cases. Yet, as one
reads in Dicey and Morris, it "has not been easy for the conflict of
laws to adapt itself to the changes in social and commercial life
which the twentieth century has witnessed".3 7

IV. THE AMERICAN "CONFLICTS REVOLUTION"

(a) American multilateralism
Nothing illustrates the need for questioning the conventional wisdom
better than the experience gathered in the United States' vast legal
laboratory with traffic accidents and products liability cases. Once
upon a time, the United States faithfully adhered to the multilateral
creed. Supported by the pronouncements of eminent judges, such as
Holmes38 and Cardozo,39 the Anglo-American variety of the
multilateral approach prevailed throughout the subcontinent. To be
sure, the American version differed somewhat from the continental
European variety: American judges and scholars followed Dicey,
who made rights vest, rather than Savigny, who told relationships to

3' E. Lorenzen, Selected Articles on the Conflict of Laws (1947) 13-14.

'5 "[A] choice-of-law rule need not achieve perfect justice every time it is invoked
to be preferable to the non-rule approach". M. Rosenberg, "Comments on Reich v.
Purcell", 15 U.C.L.A. L. Rev. (1968) 551, 644.
36 See, e.g., Walton v. Arabian Am. Oil Co., 233 F.2d 541, 546 (2d Cir. 1956) (denial
of tort recovery); Regina v. Brentwood Superintendent Registrar of Marriages, [1968]
2 Q.B. 956, 968 (refusal to marry).
3' Dicey and Morris, above note 1, at 7.
38 See Slater v. Mexican Nat'l Ry., 194 U.S. 120, 126 (1904).
3 See Loucks v. Standard Oil Co., 120 N.E. 198, 200 (N.Y. 1918).
 The King's College Law Journal

sit down. But the choice of metaphors made little difference,

especially since one is as question-begging as the other. Certainly,
the rules that were codified in Professor Joseph Beale's Restatement
of Conflict of Laws' did not differ all that much from those
elaborated in nations that relied on the German rather than the
English theoretician.
Specifically, as regards torts American judges traditionally applied
the lex loci delicti rule, which is still widely followed throughout the
world 4 (except in the United Kingdom, where no one knows what
the rule is42). Once motor cars became common, that rule caused
hardship on a large scale because of some rather peculiar American
tort rules. During the twenties and thirties, about half of the states
had adopted so-called "guest statutes", which bar a passenger's
action for injuries caused by a careless driver absent a showing of
some qualified form of negligence, such as reckless or wilful
conduct. 43 Some states had a common law rule of intra-family (not
merely inter-spousal) immunity, according to which relatives could
not bring tort actions against each other.' Finally, a number of
American jurisdictions had on their books wrongful death acts that
provided45 for low statutory ceilings on the damages survivors could
recover.

(b) Escape devices

In countless cases the lex loci delicti rule, by importing such
substandard tort rules from the accident state, produced unfair
results. Relying on their sense of justice, judges in states whose law
did not similarly restrict or bar recovery found ways and means to
reject these "drag[s] on the coat-tails of civilization". 46 To overcome
the First Restatement's hard and fast place-of-injury rule, they used
the traditional system's General Part as an "escape device".
Employing such questionable but effective techniques as dishonest
characterisation, renvoi and the public policy reservation, courts

40 Restatement of Conflict of Laws (1934).

4' See C. G. J. Morse, "Choice of Law in Tort: A Comparative Survey", 32 Am. J.
Comp. L. (1984) 51.
42 As an English treatise commenting on Boys v. Chaplin, [19711 A.C. 356, notes,
the "precise scope of this exception to the general rule of double actionability will not
become clear until it has been eludicated by subsequent judicial decisions". Dicey and
Morris, above note 1, at 1498. The reason is, as the treatise puts it with commendable
understatement, that "the ratio decidendi of the case must be somewhat speculative".
Id. at 1495.
43 See Prosser and Keeton, The Law of Torts (5th ed. 1984) 214-17. Practically all
of these statutes have now been repealed or held unconstitutional.
See id. at 901-907. Again, these immunities have largely fallen by the wayside.
4 See id. at 951. These limitations, too, have for the most part disappeared from
the American scene.
6 Clark v. Clark, 222 A. 2d 205, 209 (N.H. 1966) (Kenison, J., commenting on the
Vermont guest statute).
 Private InternationalLaw or InternationalPrivate Law? 53

managed to reach acceptable results in tort cases in spite of the

place-of-injury rule.47 Thus, while the judges did pay lip service to
the traditional system, their evasive tactics undermined its credibility.
Dissatisfied with the prestidigitations the classical approach
demanded courts and scholars began to look for alternative methods
to resolve the multi-state problems of a mobile society.

(c) The "conflicts revolution"

The tale has been told many times, and ample commentary can be
found in English treatises.4" Without going once again over well-
ploughed ground, let me simply state that the judicial and scholarly
search for alternatives to the First Restatement prompted the
"conflicts revolution"4 9 that overthrew the traditional rule and
discredited the classical multilateral approach. Looking for improved
methods of dealing with choice-of-law problems, American courts
have embraced a number of doctrines proffered by legal writers,
such as Currie's interest analysis,50 the "proper law of tort" John
Morris advocated in an article he published in the United States, 51
Leflar's "choice-influencing considerations"52 and Reese's Second
Restatement, 53 to name but the principal ones. With a distinct
disdain for foolish consistency, American judges mix these novel
approaches together 54 to reach results that, on the whole, are far
sounder than those the classical system would yield.55
Eclecticism has thus become the hallmark of American conflicts
law, as evidenced by the Second Conflicts Restatement. Unlike its
predecessor, which adhered to the vested rights theory with admirable
if misguided consistency, the new Restatement blends together a
number of discordant elements that range from near rules to a free-
form unilateral methodology called interest analysis. In consequence,
American conflicts doctrine has become complex and confusing. But
" See R. Leflar, L. McDougal III and R. Felix, American Conflicts Law (4th ed.
1986) 373-76.
4 See, e.g., Cheshire and North, above note 2, at 530-33; Dicey and Morris, above
note 1, at 1503-07; Morse, above note 41, at 94-97.
" This term is used widely in the United States and elsewhere to describe the
movement away from the classical approach. See, e.g., Cheshire and North, above
note 2, at 31; A. Ehrenzweig, "A Counter-Revolution in Conflicts Law: From Beale
to Cavers", 80 Harv. L. Rev. (1966) 377.
o See generally B. Currie, Selected Essays on the Conflict of Laws (1963).
J. Morris, "The Proper Law of a Tort", 64 Harv. L. Rev. (1951) 881.
J'
52 See Leflar, McDougal and Felix, above note 47, at 277-79.
53 Restatement (Second) of Conflict of Laws (1971).
See R. Leflar, "Choice of Law: A Well-Watered Plateau", 41 Law & Comtemp.
Probs. (Spring 1977) 10.
51 See Juenger, above note 6, at 146-48. In addition to yielding fair results in
particular cases, the reorientation of American conflicts law may have hastened the
demise of the statuta odiosa that prompted the "conflicts revolution". See id. at 194
n. 1187. See also Collier, above note 8, at 356-57.
 The King's College Law Journal

if one looks at the results courts reach in actual practice, rather than
the theories they profess to follow, one finds that in the large
majority of cases they end up applying a law that favours recovery. 6
More often than not, that happens to be the lex fori. 7 In
consequence, the conflicts revolution has enhanced the protection of
interstate tort victims, which is why Leflar concluded that American
conflicts law has reached a "well-watered plateau" on a ground
higher than the "sinkhole" it used to occupy. 58
What American courts have been doing in interstate and
international tort cases should come as no surprise. The lex fori
usually favours recovery because tort plaintiffs will rarely sue in a
state whose law is hostile to their causes. American attorneys, who
as a rule represent tort victims on a contingent fee basis, cannot
afford to litigate (rather than "sue") in such a state, and generous
jurisdictional rules allow them to shop for a more suitable forum. If,
however, suit is nevertheless brought in a non-recovery state whose
highest court considers a foreign rule superior, one should expect
that the forum law's perceived inferiority would induce the court to
change the domestic rule. Yet, astonishing as it may seem, judges
have-on more than one occasion-preferred to apply a better
foreign tort rule. 9 Of course, it it also true of the United States
judiciary what has been said about yours, namely that "common
sense is a quality with which even the least learned English judge is
liberally endowed".' Once they throw off the traditional systems's
fetters, courts are bound to compare the quality of the substantive
rules in contention, and, as Graveson has pointed out, the process
of comparison leads to value judgments. 6

V. EUROPEAN REVERBERATIONS
(a) An English echo
Whereas there is a ready explanation for the American conflicts
revolution it has never failed to amaze me how something quite

5' For a statistical analysis of American tort choice-of-law cases that supports this
conclusion see P. Borchers, "The Choice-of-Law Revolution: An Empirical Study",
49 Wash. & Lee L Rev. (1992) 357, 378, 380-82, 384.
" See id. at 370-72 (table showing the forum preference of various approaches).
But see L. McDougal III, "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. (1993) 795, 799 (forum law applied in only 58% of 223 cases applying modem
methodologies).
5' See Leflar, above note 54, at 26.
s9 See, e.g., Offshore Rental Co. v. Continental Oil Co., 583 P.2d 1226 (Cal. 1978)
(California's "attenuated and anachronistic" liability rule displaced by Louisiana's
"prevalent and progressive" law); Bigelow v. Halloran,313 N.W. 2d 10 (Minn. 1981)
(Minnesota's non-survival rule displaced by superior Iowa rule).
j.J0 Morris, Cases on the Conflict of Laws (2d ed. 1951) 18.
61 R. Graveson, One Law: On Jurisprudence and the Unification of Law (Selected
Essays vol. II) (1977) 9.
 Private InternationalLaw or InternationalPrivate Law?

similar could have happened here in England. I refer, of course, to

Boys v. Chaplin,62 in which the House of Lords cited with approval
Babcock v. Jackson,63 the New York Court of Appeals case that
ushered in the judicial conflicts revolution. I find it strange that
counsel for the defendant would take a case in which so little money
was at stake as in Boys all the way to the House of Lords. To me
that strategy is all the more surprising considering the attendant
risks of not only exposing the defendant to the payment of hefty fees
and costs, but of prompting the highest bench to overrule Phillips v.
Eyre," a precedent that is as outmoded as it is favourable to
defendants and their insurers. And considering that the cost of
litigation in conflicts cases dissuades even commercial parties,6" it is
no less astonishing that the plaintiff in Boys had the intestinal
fortitude and resources-unless he benefited from legal aid-to
persist in challenging this hoary authority.
To be sure, Boys-whose meaning is still in doubt now, 23 years
after the case was decided 6 -- may not amount to a real revolution;
after all, a single swallow does not a summer make and only two of
the speeches in that case can be characterised as revolutionary, while
the others relied largely on escape devices, specifically the
"procedural" nature of damages. Still, it is remarkable that it was
decided at all. England, of course, is not the best place in the world
to try out novel tort choice-of-law theories. Whilst, in Lord
Denning's memorable words, "as a moth is drawn to the light, so is
a litigant drawn to the United States",67 the common law's home
country is quite inhospitable to the plaints of accident victims.
Relatively low recoveries, the risk of having to pay the defendant's
costs and fees, hostility to the pactum de quota litis and the lack of
an American-style discovery make it inadvisable for tort plaintiffs to
sue in the United Kingdom and, if they lose, to appeal. For this
reason the relatives of the Scotsmen killed in a Scottish aeroplane
accident whose actions were dismissed in the United States on forum
non conveniens grounds68 may still be waiting for compensation.
Moreover, not only do the English choice-of-law rules remain
unsettled, in comparison to the robust and wide-ranging (sometimes
62 (1971] A.C. 356.
63 191 N.E. 2d 279 (1963).
6 (1870) L.R. 6 Q.B. I.
65 See Dicey and Morris, above note 1, at xvi. Sir Thomas Bingham, M.R., recently

deplored "the sheer difficulty of anybody finding the resources to go to court unless
they are a multinational company or legally aided". The Times, Monday, May 2,
1994, p.5. It should therefore come as no surprise that "there is so little English case-
law on the question". Collier, above note 8, at 181.
' See, e.g., Cheshire and North, above note 2, at 534-49; Dicey and Morris, above
note I, at 1495-1502.
67 Smith Kline & French LaboratoriesLtd v. Bloch, [1983] 2 All E.R. 72, 74 (C.A.).
See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).
 The King's College Law Journal

overly robust and wide-ranging) discussion of conflicts theories in

the United States, one finds rather less critical comment and
considerations de lege ferenda in British treatises and journals. Some
English authors are not even interested in exploring the existing case
law's ramifications. To mention but one example: when my colleague
Professor Lowenfeld reviewed the previous edition of Dicey and
Morris, he pointed out that it failed to address the obvious question
whether the Boys exception to Phillips v. Eyre applies if the lex loci
delicti commissi happens to be more favourable to the plaintiff than
the law of the parties' common domicile.6 9 In his opinion, the value
of the English authors' endeavours "lies more in accurately describing
and synthesizing existing law than in airing their own views of better
law or promising trends".7" Since practitioners can be expected to be
even less venturesome than law teachers, one may surmise that they
have sent away a good many would-be multistate tort plaintiffs.

(b) Other European countries

Looking at the Continent, one finds tendencies akin to those that
surfaced in Babcock and Boys. To be sure, the highest French civil
court has consistently relegated tort victims who were injured abroad
to the lex loci delicti's tender mercies. On numerous occasions the
Cour de cassation reversed audacious inferior courts that had resorted
to escape devices to avoid the application of draconian foreign tort
rules.7 France's ratification of the Hague Convention on the Law
Applicable to Traffic Accidents, however, has largely superseded the
judge-made choice-of-law rule.72 Germany, for historical reasons,
follows a rule akin to that in Babcock and Boys. When its troops
occupied much of Europe, Hermann Goering signed a decree
ordaining the application of German law to torts committed by one
German national against another.73 Despite its questionable origin,
this provision-which the German Supreme Court, after considerable
vacillation, converted into a common-domicile rule 74 -produces
fairly sound results because it usually invokes the lex fori. In
addition, German cases established an alternative reference rule in

9 A. Lowenfeld, "Conflict of Laws English Style", 37 Am. J. Comp. L. (1989) 353,

379. More generally, Lowenfeld criticises Dicey and Morris as well as Cheshire and
North for providing "less critique, less idiosyncracy, less variation that [sic] one might
expect in an American or a continental treatise". Id. at 354.
70 id. at 355.
" See Y. Loussouarn and P. Bourel, Droit international privg (3d ed. 1988)
634-35.
72 See id. at 635-37.
" See Verordnung des Ministerrats fuir die Reichsverteidigung iber die Rechtsanwen-
dung bei Sch~digungen deutscher Staatsangeh6riger ausserhalb des Reichsgebiets of
December 7, 1942, s 1(I), [1942] R.G.BI. I 706.
74 See B.G.H.Z. 119, 137.
 Private InternationalLaw or InternationalPrivate Law? 57

favorem laesi for long-distance torts, i.e. if the place of acting and
75
the place of injury do not coincide.
Thus, in European jurisdictions as well, tort choice of law has
moved away from the rigid application of the lex loci delicti commissi
towards more flexible approaches, which usually invoke the lex fori,
a solution that-ironically-Savigny had espoused. 76 This movement
is not limited to England and Germany; several European nations
have enshrined flexibility in their conflicts codifications 77 to enable
judges to reach satisfactory results in international cases. Scholarly
writing as well increasingly favours approaches that are not blind to
substantive values. 78 While it might go too far to say that anything
like the American conflicts revolution is brewing in tort choice of
law, a few straws are in the wind. This movement is all the more
remarkable considering that, because of national health insurance
schemes, tort claims do not have the same importance as they do in
the United States and that in most European countries cost and
other disincentives discourage accident litigation.

(c) Other legalfields

(i) Contracts
Although the multilateral approach claims application across the
board, in the field of contracts the classical method never really
caught on. Dumoulin's famous consilium 79 and Lord Mansfield's
dictum about applying the law "with a view to which ... [the
contract] was made"8 ° laid the foundation for the proper law idea,
which eschews such hard and fast connecting factors as the place of
contracting or performance. Instead, that approach gives the parties
and, if they fail to exercise it, the judge, discretion to determine the
applicable law. In the United States, Professor Beale's attempt to
replace this sensible solution with the lex loci contractus rule8' came
82
to naught; the Second Restatement now supports party autonomy
71 See B.G.H.Z. 80, 199.
76 See Dicey and Morris, above note 1, at 1483.
77 See, e.g., Austrian Bundesgesetz iber das internationale Privatrecht of June 15,
1978, [1978] B.G.B.I. No. 304, art. 1 (principle of "closest connection"); Swiss
Bundesgesetz fiber das Internationale Privatrecht of December 18, 1987, [1983] B.BI.
I 263, arts. 132 (party autonomy), 133(1) (common-domicile rule), 135(1) (alternative
reference rule for products liability), 138 (same for damages caused by immovables),
139 (same for defamation by media). See also Law Com. No. 193 (1990) (proper law
exception to lex loci delicti rule).
7 See, e.g., J. C. Fernindez Rozas and S. Sdnchez Lorenzo, Curso de Derecho
Internacional Privado (2d ed. 1993) 404-09; A. Flessner, Interessenjurisprudenz im
internationalenPrivatrecht(1990) 78-97, 145-47.
7 C. Molinaeus, Consilia et Responsa (2d ed. 1568) 251.
80 Robinson v. Bland, 96 Eng. Rep. 141, 97 Eng. Rep. 717 (K.B. 1760).
"I Restatement of Conflict of Laws §332 (1934) (law governing validity). But see id.
§§358-72 (lex loci solutions governs matters relating to performance and breach).
82 Restatement (Second) of Conflict of Laws §187 (1971).
 The King's College Law Journal

and employs, in the event that the parties failed to stipulate the
applicable law, the amorphous "most significant relationship"
formula. 3 The European Union has opted for the same approach,
except that traditionalists felt impelled to incorporate the questionable
"characteristic performance" test into the Rome Convention8 and to
withhold approval of the choice of a supranational law such as the
85
lex mercatoria.
Putting on one side such regressive wrinkles, the Rome Convention
reflects the practice of most nations to premise contract choice of
law on teleology rather than conceptualism. Party autonomy, in
particular, yields far sounder solutions to choice-of-law problems
than any hard and fast connecting factors possibly could, at least if
care is taken to prevent its abuse by powerful enterprises. Party
autonomy not only effectuates the fundamental policy underlying
the law of contracts, that is the freedom to order one's relations with
others on mutually acceptable terms, but it also promotes the
traditional values of certainty, predictability and uniformity of result
far better than any multilateral choice-of-law rule could. Because of
its utility, party autonomy has weathered the many attacks levelled
against it by legal positivists, who could not understand why
individuals and enterprises should be able to encroach upon the
sovereign's prerogative to dictate the applicable law. Indeed, some
legal writers have advocated extending the salutary principle of party
autonomy beyond the field of contracts.86 Clearly, there is no reason
why the same pragmatism that prevails in contractual dealings
should not also inform, e.g., succession and family law.

(ii) Family law

Talking about family law, in that area the traditional multilateral
rules-especially those that relied on the lex patriae rather than on
the more flexible domiciliary connecting factor-led to highly
undesirable results, causing countless couples great and lasting
grief. 87 Just as the proliferation of motorcars put choice-of-law rules
to the test in the United States, so did the immense migration of
people Europe has witnessed. Indiscriminately importing undesirable
foreign law, the classical approach, which is blind to substantive

s Id. §188.
For a detailed critique see F. Juenger, "The E.E.C. Convention on the Law
Applicable to Contractual Obligations: An American Assessment", in Contract
Conflicts (P. North ed. 1982) 295, 301-02.
" See P. Lagarde, "Le noveau droit international priv& des contrats apr~s l'entr~e
en vigueur de la Convention de Rome du 19 juin 1980", 1991 Rev. crit. de dLp. 287,
300-01.
" See P. North, "Choice in Choice of Law", 3 King's College LJ. (1992) 29,
41-48.
"7 See Juenger, above note 6, at 63-64, 220-21, 223-24.
 Private International Law or International Private Law?

concerns, failed to deliver acceptable results. For this reason, one

country after the other abandoned the hard and fast choice-of-law
rules of yore. Case law-including a landmark German Constitutional
Court decision 88 -, statutes and the denunciation of early Hague
conventions bear witness to the normative force of fact.89 At the very
least, it seems appropriate to speak of a European conflicts
"evolution"," if not a revolution, in the field of family law.
Abandoning the l'art pour l'art attitude that is so dear to
traditionalists, modern domestic conflicts legislation, case law and
international conventions are responsive to the exigencies of
substantial justice. In consequence, as is true of American tort choice
of law, substantive principles-such as a distinct favor matrimonii vel
divortii 9t -have emerged in European private international law.

VI. THE ROLE OF TELEOLOGY

The three sub-categories of private international law upon which I
have touched-torts, contracts and family law-evince progressive
tendencies away from the traditional value-blind multilateralism and
towards a pragmatic, result-oriented approach. The movement in
these areas suggests that when increased mobility causes problems
on a massive scale, the classical private international law rules cannot
cope with them in a satisfactory manner. Surprisingly, however,
some important fields have stagnated in spite of an unprecedented
increase in transnational dealings. To name but one that remains in
limbo: notwithstanding modern Europe's immense commercial
mobility, the problem of security interests in movables-which ought
to be of considerable concern to borrowers and creditors alike-has
seen little progress away from the dysfunctional lex situs rule. 92 The
contrast with the United States, where the pragmatic provisions of
article 9 of the Uniform Commercial Code deal cheaply and
efficiently93 with the myriad secured transactions that criss-cross the
entire subcontinent each day,94 is truly striking.

s Decision of May 4, 1971, 31 BVerfGE 58; see Juenger, above note 6, at 224-26.
9 See Juenger, id. at 65-67, 221-23, 228-32.
o See K. Siehr, "Domestic Relations in Europe: European Equivalents to American
Evolutions", 30 Am. J. Comp. L (1987) 37, 58-61.
"' See Juenger, above note 6, at 182-83, 189, 229, 231.
92 See, e.g., Cheshire and North, above note 2, at 800-03; G. Kegel, Internationales
Privatrecht (6th ed. 1987) 485-91. For a critical appraisal see C. G. J. Morse,
"Retention of Title in English Private International Law", 1991 J. Bus. L 168.
93 See Juenger, "Nonpossessory Security Interests in American Conflicts Law",
84 Com. L.J. (1979) 63.
94 For a critical comparative analysis of various security interests and proposals for
law reform see S. S;Inchez Lorenzo, Garantias Reales en el Comercio Internacional
(1993).
 The King's College Law Journal

Article 9, which relies on substantive solutions, inspires confidence

in creditors and reduces transaction costs by safeguarding the
traditional values of certainty, predictability and uniformity of result
far better than the nostrums proffered by traditionalists to cure the
problems of conflits mobiles. Instead of indulging in conceptualistic
musings about the seat of legal relationships, or the spatial reach of
legal norms, the authors of the Uniform Commercial Code paid
attention to the needs of trade and commerce. And this takes me
back to my topic. The changes in those areas of the conflict of laws
that have gone "modem" in the United States and Europe are
producing an accumulation of precedents, statutes and conventions
that favour desirable substantive policies. In effect, these
developments-to use the German term-"substantify"9 5 private
international law; courts of different nations are wont to reach
identical results irrespective of the reasoning they employ.
To illustrate: assuming that the facts of Boys v. Chaplin are
litigated by local parties in, say England, Germany, Switzerland,
France and New York, the outcome will be the same. The plaintiff
is bound to recover for pain and suffering in all of these jurisdictions
because their courts can be expected to refuse application of the lex
loci delicti commissi, the Maltese rule that does not recognise such
damages. The grounds on which they reach this result will differ;
English judges would rely on Boys, German and Swiss courts on the
common domicile rule, the French on article 4(b) of the Hague
Traffic Accidents Convention' and New York judges on "interest
analysis". But all of them would in fact cooperate on establishing a
supranational principle in favorem laesi. In this fashion, to borrow a
brilliant writer's apt phrase,97 "international private law"98 is being
gradually secreted in the interstices of private international law.
An evolution towards such an international private law is clearly
discernible in the field of commerce.99 A growing number of
respectable scholars maintain that a new law merchant is emerging
from commercial and arbitral practice, a phenomenon that the
International Association of Legal Science discussed at King's
College more than thirty years ago." ° To be sure, some eminent

" H. Neuhaus, "Neue Wege im europaischen Internationalen Privatrecht?", 35

RabelsZ (1971) 401, 407-10, apparently coined the term "Materialisierung".
9 If the motorcar and scooter have a common non-Maltese registration, which the
statement of facts in Boys leaves unclear.
9' H. S. Maine, Dissertations on Law and Custom (1886) 389.
9' See above note 4 and accompanying text.
9 On the new lex mercatoria see generally Lex Mercatoria and Arbitration
(T. Carbonneau ed. 1990).
"0 See R. Graveson, Foreword, in The Sources of the Law of International Trade
(C. Schmitthoffed. 1964) vi.
 Private InternationalLaw or International Private Law?

jurists, such as Lord Mustill, have doubted its existence;... indeed,

he seemed to say that an agreement to submit to arbitration that
stipulates the application of the lex mercatoria is invalid."0 2 In the
Chunnel case, however, Lord Mustill did honour the parties' intent
to submit their agreement to arbitration'0 3 even though the law they
had picked was of a supranational nature." 4 In fact, his speech
specifically noted that a doctrine crucial to the ultimate decision of
the dispute "is part of international trade law".'0 5 One should assume
from this remark that Lord Mustill now acknowledges the existence
of such a law. If he did indeed recant, the lex mercatoria may be
assured of a less hostile reception in Great Britain than it has
received so far, being rejected out of hand because it does not fit the
06
multilateral mould.1
The development of transnational rules is, however, not necessarily
limited to commercial law. In the field of torts, the United States
"conflicts revolution" and similar trends in European law have
resulted in judicial decisions that favour sound substantive solutions
by filtering out substandard rules. As noted earlier, the focus on
substantive considerations allows the judiciaries of different countries
to cooperate in formulating appropriate standards for interstate and
international cases. The emergence of such an "international private
law" is not exactly a new phenomenon; it has antecedents in the
Roman ius gentium and the ius commune of the Middle Ages. In the
common law orbit, the existence of supranational rules of commercial
law has been recognised by such eminent judges as Lord Mansfield' °7
and Joseph Story.' In fact, by resisting the temptation to codify,
the nations pertaining to this orbit have retained a fund of shared
principles and institutions that are not confined by state and national
boundaries.
Nor is it surprising that history should repeat itself. Even before
the turn of the century, at a time of rampant chauvinism, the
Netherlands scholar Josephus Jitta hypothesised a supranational
0 See Mustill, L.J., "Contemporary Problems in International Commercial
Arbitration: A Response", 17 Int'l Bus. L. (1989) 161.
102 See A. Lowenfeld, "Lex Mercatoria: An Arbitrator's View", in Lex Mercatoria

and Arbitration, above note 99, at 37, 39.

'0 See Channel Tunnel Group Ltd. v. Balfour Beatty Constr. Ltd, [1993] A.C. 334.
0 "The agreement's choice-of-law clause provided for the application of the
principles common to both English law and French law, and in the absence of
such common principles by such general principles of international trade law as
have been applied by national and international tribunals."
Id. at 347.
105 Id. at 356.
'0 None of the indices in the standard British conflicts treatises even mentions the
lex mercatoria.Cheshire and North do not discuss the new law merchant at all; Dicey
and Morris, above note 1, at 583-85, reject it out of hand.
107 See Luke v. Lyde, 97 Eng.Rep. 617.
'08 See Swift v. Tyson, 41 U.S. (16 Pet.) 1, 19 (1842).
 The King's College Law Journal

private law governing international transactions.1 9 What he said

then is even more topical now. Our conflicts doctrines are largely
relics of the past century, when notions of positivism and statism
reigned supreme. These notions are now being challenged by virtue
of the fact that the twentieth century has seen not only an
unprecedented and ever-increasing mobility of persons, things and
transactions, but also the emergence of supranational institutions. At
the same time, we are far less enamoured than our forbears used to
be with conceptualist musings about relationships that sit and rights
that vest.

VII. IN CONCLUSION
Today's presentation is the third in a series honouring the memory
of Ronald Graveson, the distinguished barrister, scholar and
comparativist who served King's College as Dean and Head of
Department. When I was invited to give this lecture, I wondered
what the honouree would think about my talk. Looking for clues in
Graveson's work, I came to the conclusion that we are kindred
spirits. Whilst his book on private international law is written in a
fairly conservative vein, one feature differentiates it from the
standard British treatises: his discussion of justice," ° a topic others
avoid.
Also, the two-volume set of Graveson's collected writings contains
much that I find congenial. For instance, he implicitly recognised the
notion of an international private law when he cited with approval
Blackstone's opinion that the law of nations includes "not only
transactions between states, but those also between individuals. I.
In the same vein, Graveson, decrying the Austinian positivism that
"artificially severed""' 2 private from public international law,
advocated the "achievement of just and convenient solutions"." 3
Graveson believed, as I do, that the "house of law is the house
of all mankind"," 4 that judges can contribute to the unification of
law 5 and that "unification ...may be the most effective way of
bringing about reform in internal legal systems"." 6 It is an honour
to have been invited to commemorate Graveson, and I hope that my
talk helps keep his philosophy alive.

"0 See D. Josephus Jitta, La mithode du droit internationalprivi (1890) 50, 132, 221
and passim.
110 See R. Graveson, The Conflict of Laws (5th ed. 1965) 9-11.

R. Graveson, Comparative Conflict of Laws (Selected Essays Vol. 1) (1977) 6.

1 Id. at 16.
" Id.at 50.
114 Graveson, above note 61, at 1.
115 Id. at 50.
116 Id. at 219.