Abstract
While the complexity of the methodological and legislative-technical apparatus of conflict of laws has, in the eyes of its critics, created an aura of impermeability, they are, in fact, instruments through which a relationship to the foreign is conveyed and articulated. However, conflict of laws is not an immutable system of rules but rather a technique that undergoes varying degrees of development depending on the changing premises on which it is built. These are notably defined by different approaches to the values that frame the conflicts resolution. Depending on these values, the available instruments of conflict of laws are used to achieve different objectives. This results not only in a confluence of different methods but also in changes within a particular method. Against the backdrop of the value transformations of conflict of laws, this paper seeks to demonstrate that the abandonment of methodological purism of conflict of laws necessarily entails the abandonment of relational purism towards the foreign. By contrast, insofar as transformations within the dominant multilateral method are concerned, it is argued that the changes in value orientation have not led to a fundamental change in the nature of the relationship to the foreign.
1 Introduction
The idea of the innocence of conflict of laws is inextricably linked to the theory presented by Friedrich Carl von Savigny in the mid-19th century, and to the question of justice achieved by conflict-of-laws rules. Initially, the traditional conflict-of-laws method, built on the premises of Savigny's theory, led to the view that conflict-of-laws rules should be free of any value judgments – hence innocent. This was (later) opposed by proponents of the other strand of the doctrine who rejected the detachment of the resolution of conflicts cases from requirements of substantive justice. These two schools of thought were often presented as two distinct categories separated by a tall, impenetrable wall, where only one of these approaches was to be followed. And while this absolutization of the justice dilemma now belongs to the history of conflict of laws, the continued lack of doctrinal consensus on this issue is still subject to academic debate with some degree of frequency, without any categorical, objectively valid conclusions being drawn.
The aim of this article, however, is not to further examine the doctrinal underpinnings of this dilemma. Although the author perceives the danger of an atheoretical and non-doctrinal approach to conflict of laws,1 it is sometimes necessary to descend from the meta-level of conflict of laws, to explore the waters of practice, and only with this knowledge to return to the doctrinal level where one can draw some conclusions. For although science without an ideal would not be science, neither would science be science without the facts that serve as the basis for such an ideal.2 And as noted elsewhere, private international law cannot afford to be unrealistic.3 Therefore, the author starts from the premise that the consideration of material values through the various tools and techniques of conflict of laws is an undeniable fact that is already present and that has firmly established its place in conflicts resolution. This paper, thus, uses this doctrinal rift to define a different question.
Legal plurality and diversity constitute essential prerequisites for the existence of private international law. The notion of conflict of laws as a coordinator between legal orders then entails the need to manage4 this diversity. This management, however, is not a matter of any blind mechanics of conflict of laws. The willingness to apply, under certain circumstances, foreign law should rather be seen as openness and an expression of a relationship to foreign law. Enshrining the possibility to apply foreign law is not some autonomous, independent act, but an act of engagement and interdependence.5 It embodies the premise that even foreign legal orders may provide legal solutions consistent with the concept of justice.6
Once this initial stage of encountering foreign law is overcome and it is concluded that its application is indeed possible, a second-stage question arises, namely the extent to which one will be open to its application.7 This is then expressed by a range of methods and instruments available to conflict of laws. And it is in this aspect that the role of material values begins to crystallize in the process of conflicts resolution. This is because conflict of laws is commonly conceived at spatial and temporal levels. However, when expressing a relationship to foreign law, the criterion of ‘depth’ must be added to the equation. This criterion, as will be seen, relativizes the presumption of equality of legal orders, since it expresses the need to take into account the relative development of the legal orders under consideration.8 That is, equality of legal orders, and hence neutrality of conflicts resolution, depends significantly on the value compatibility of legal orders.
Thus, the question addressed here is what this ‘loss of innocence’ entails in the context of this relational perception of conflict of laws. The author asks whether the consideration of material values in the continental-European conflict of laws changes the nature of the relationship to foreign law when compared with the ‘Savignian tradition’.
2 The Savignian legacy
Why be overly modest? And yet so close to reality. With these seemingly incongruous observations, one can, mindful of the subsequent development, assess Savigny's statement when, as part of the preface to the eighth volume of his treatise in July 1849, he remarked: ‘The writer must hold it an honour if he succeed in promoting the progress of the science by establishing some of its true principles, even though his work should one day be remembered only as a single preparatory step in its development.’9
There is no doubt that Savigny indeed succeeded. The author will mention just two manifestations of this success, which are the most relevant for this article. On the one hand, it is a methodological success where his approach, often hyperbolically likened to the Copernican revolution10, has become a fundamental approach to determining the law applicable to cross-border disputes, not only within continental Europe but across jurisdictions worldwide. The fact that his theory has undergone a series of transformations up to the present time, which in different epochs of its development have been described using words such as crisis,11 evolution12 or revolution,13 has made no difference. The second component of Savigny's success, one that is closely intertwined with the methodological approach and doctrinal underpinnings of his doctrine, is the value component. Savigny succeeded in presenting a conflicts system, the operation of which is still often regarded as an ideal we should pursue at the expense of sometimes minor and sometimes greater difficulties.
The synthesis of these two aspects presented the default attitude towards foreign legal orders. Thus, although outlining the fundamental premises of Savigny's theory is as purposeless for readers familiar with private international law as carrying coals to Newcastle, the author cannot avoid outlining at least some fundamental tenets even for the purposes of this article. The author, however, believes that these are necessary prerequisites for a comprehensive grasp of this text and for answering the question it sets out to answer.
2.1 Foundations of Savigny's doctrine
Savigny started his theory by rejecting the concept of independent sovereignty as the basis of his doctrine, since it would ultimately result in the exclusion of aliens from rights.14 Instead, he took as a starting point the assumption of equality of legal orders, which forces legislators to abandon the exclusive application of the lex fori.15 And while stating the (presumed) equality of legal orders does not answer the question of what conflicts solution is to be adopted, a necessary consequence of this equality, according to Savigny, is that the same legal relations should expect the same legal solution regardless of the forum, i.e., that one and the same law will be applied across the spectrum of sovereign countries.16
2.2 Values in the traditional continental doctrine
Savigny's proclamation of the equality of legal orders was methodologically translated into the adherence to multilateral conflict-of-laws rules. Their application was supposed to reflect this elementary premise by eliminating any bias towards foreign law, its values, its ideas of a just material ordering of legal relations. The mere application of multilateral conflict-of-laws rules would, however, not be sufficient to achieve the goal of international decisional harmony if their construction was based on the ideas and will of each individual legislator about a fair conflicts resolution. To deal with this problematic aspect, or to prevent its consequences from undermining the objective of decisional harmony, a need was felt to turn to something external, something that would stand on an elevated platform vis-à-vis the conflicting legal orders.17
The multilateral method applied on the European continent was thus traditionally characterized by rigid and mechanical rules that were logically derived from abstract, universally valid principles.18 For Savigny, this principle was the seat of a legal relationship (Sitz). The universality of this principle could, to some extent, have given the impression of a natural-law framework, since it was the natural seat of a legal relationship that was to be found.19 Savigny's theory thus relied on the notion of conflict of laws as an objectively existing category from which legislators would draw equally constructed conflict-of-laws rules. International decisional harmony was then conceived as the ultimate goal of conflict of laws, its ethos.20 This conclusion has far-reaching implications in relation to the question of values playing a role in conflicts resolution.
The universalist conception of conflict of laws may have given the impression that the values represented and achieved by the system of conflict of laws were also uniform and universal. And since the whole system was based on the assertion of equality of legal orders and on the detachment of conflict of laws from substantive law, those values could not be material. On the contrary, they had to be purely conflicts values which were conceived as inherent in the field of conflict of laws. This was also perhaps the source of the belief that such values could be universal and could thus bridge material values.21 And it was precisely where there was the notion of purity of conflict of laws, the violation of which could threaten the peaceful coexistence among states, that the thesis of a global conflict-of-laws justice was often adhered to.22
In view of the above, four fundamental premises or values are typically associated with Savigny's doctrine – equality of legal orders, neutrality, international decisional harmony, and legal certainty and predictability.23 To answer the question set out in the introduction to this article, the author focuses hereafter only on the value of neutrality, although there is no denying the interrelatedness of the identified values and their joint contribution to the overall picture of conflicts resolution.
2.3 Neutrality
The concept of neutrality within the realm of conflict of laws may be approached from different viewpoints, each taking on different meaning. In the context of Savigny's doctrine, reference can be made first to the concept of neutrality linked with the idea that conflict-of-laws rules derive from an a priori principle. This view served as a kind of shield behind which legislators could hide to avoid responsibility for the final material result. This neutrality is realized through the notion of the objective existence of conflict of laws, where a conflict-of-laws rule is ‘predetermined, inherently rational, in the nature of things and therefore in no need of justification’.24
The second, and probably the most frequently invoked meaning of neutrality is illustrated by the idea of detaching conflicts resolution from considerations and values of substantive law. Only then could the dogma of neutrality prevail.25 Savigny's conception fulfilled this neutrality precisely through the idea of the existence of conflict of laws as a kind of meta-law which stands alone and independently above substantive private law as an arbiter of sovereign claims, prescribing the applicable law.26 This isolation of conflict of laws is therefore, among other things, the reason why the idea of a regulatory function of conflict of laws, as discussed by contemporary doctrine, could not be developed in this period.
In relation to this isolation from substantive law and material values, one can recall Mills' observation that ‘in being open to everything, it strives for nothing’.27 It should be noted, however, that the interpretation of this statement needs to be modified. Mills makes this criticism in relation to Section 6 of the Second Restatement of Conflict of Laws, which in his view contains too many possible considerations to be followed when dealing with a particular case, with the ultimate decision being delegated to a particular judge, thereby eliminating the space for the development of widely accepted and coherent policies. With regard to Savigny's doctrine, the opposite is true. His theory has a clearly defined goal. It aims to introduce uniform conflict-of-laws rules based on abstract principles applied across sovereign countries. It is not open-ended in the sense of permitting too many considerations. Conflict-of-laws rules at the time were rigid and did not allow much room for flexibility and achieving individual justice. They did not even allow for the evaluation of conflicting interests and values, as these were supposed to be uniform within the abstract principle applied. However, because the fields of conflict of laws and substantive private law were strictly separated, there was no regulatory function, no material values, and thus it is precisely and only in this sense that it can be said to ‘strive for nothing’. Conflict of laws was merely a passive arbiter between allegedly equal legal orders. Yet this is precisely the aspect that has been the target of one of the most pressing criticisms directed at Savigny's conception of conflict of laws, namely that it appears too apolitical.28
This neutrality of the conflict-of-laws resolution was facilitated by the liberalism of the time in which it operated, when the role of states in private law relations was reduced.29 Private law was conceived as a crystallization of long-term social development. Law was to flow from what Savigny referred to as the Volksgeist, the spirit of nations. States were only there to codify this in the form of law.30 And because states were not supposed to have interests to advance through private law, the idea that market was a neutral, apolitical institution for allocating responsibility and maximizing productivity was promoted.31 Therefore, politics was also pushed out of the so-called liberal conflict of laws, just as the links with public international law were severed.32 Therefore, this conception of conflict of laws could afford to some extent the presumption of indifference to the substantive results of its application, with the exception of undermining the (value) foundations of a given state.33
Finally, it should be mentioned that if one speaks of neutrality of conflict of laws as a detachment from substantive values, this implies a move towards conflicts justice. This kind justice is based on finding the law of the country with which a given category of legal relations is most closely connected, since it has been assumed that the law of that country is the most appropriate to provide a solution. Thus, one sometimes also encounters the term systemic justice which expresses its function of allocating regulatory authority among legal systems rather than regulating legal relationships as such.34
2.4 Relationship to the foreign
All the aforementioned aspects contributed to the overall picture of how foreign law was to be approached. It has already been noted that multilateralism became the dominant methodology. Thus, a conflict-of-laws rule is constructed in such a way that it can refer to any legal order; it does not merely define the scope of the law of the forum. This represents the dominant method of regulating private law relations with an international element even in the context of contemporary practice.
Multilateralism, however, comes with a paradox. On the surface, it appears to be the most open approach towards foreign law and its values, especially in the context of adherence to the principle of equality of legal orders. As a political stance and an ethical value, however, multilateralism is associated with tolerance and mere conditional acceptance of the foreign.35 Tolerance is not a stance that sees foreign approaches and values as something enriching that could, under certain circumstances, shape the approaches of the forum acting as a host in the relationship. On the contrary, the core of this approach is a belief that the foreign is wrong and the host is only able to accept it. Thus, foreign law is applied not because of its values, but rather despite them, thanks to the tolerance that a legislator as a host shows towards it.36
This conditional acceptance manifests itself in the fact that there are a priori conditions imposed on foreign laws and legal categories for them to be tolerated. And since there is no ‘view from nowhere’ in resolving conflicts of laws, the source of these conditions must be the categories and values of the forum.37 Thus, foreign law is accepted only to the extent that it corresponds to categories recognized by the forum legislator in terms of its values. It goes without saying that this correspondence of values need not be absolute, for in such a case the choice between identical legal orders would be superfluous. If, however, the inconsistency between the fora and foreign concept is no longer acceptable, foreign law will not be tolerated and will not be given effect within the forum. In addition to setting a priori conditions for entry, an ex post mechanism closing the door to an incompatible guest has been recognized – the public policy reservation as a device for defining oneself against the consequences of the application of a foreign legal order if these would undermine fundamental values of the host. Muir Watt is critical of this approach to conflict of laws, linking it to a narcissistic view of the world with a tendency to reduce the foreign to a reflection of oneself.38
Thus, the paradox lies in multilateralism's assertion of neutrality, while its premise is a conditional acceptance of foreign law, and the assertion of equality of legal orders, while the authority to define the conditions of acceptance of the foreign belongs exclusively to the host.39 It is precisely this criticism that, at least on the face of it, is preceded by the circumstances underlying Savigny's theory. For if conflict-of-laws rules are conceived as a product of an objectively existing category, it was not for any particular host to decide on how to formulate the conflict-of-laws rules in question. Therefore, Savigny's conception might have seemed entirely neutral, thereby giving the impression that multilateralism did not create this gap between the image of the self and the image of the other. This was supported by the role of Christianity as a common bond of spiritual life that brings even the most divergent nations together, thereby downplaying their distinctive differences.40 It was the existence of reciprocal relations across the international common law of nations, based on Christian morality, that was one of Savigny's arguments for abandoning the exclusive application of the lex fori.41
3 Intermezzo
Savigny's theory also found its legacy in the United States, where it initially appeared that the emerging continental model of determining applicable law based on mechanical rules would be followed. This tendency was materialized by Joseph Beale, the reporter of the First Restatement of Conflict of Laws, which was founded on ‘rigid and therefore mechanical – but at the same time predictable – rules for determining the applicable law’.42 Although by 1934, when the Restatement was adopted, the established conflict-of-laws rules had long since not corresponded to the European standard, these rules became a fertile ground for the beginnings of the process commonly known as the American conflicts revolution. Criticism focused specifically on those rigid and outdated continental approaches relying on a priori principles.
Unlike on the European continent, there was not and still is not a uniform methodological approach that would reflect shared perceptions across the United States. However, this brief insertion within our otherwise continental-European focus is necessary to highlight that these developments have, directly or indirectly, provided for a stronger emphasis on material values. And they did so in a radical form, challenging the traditional doctrinal paradigms. Thus, although in many cases the impact of these theories was academic rather than distinctly pragmatic, the fact remains that they also resonated across the European continent where they at least highlighted some developments that did not manifest themselves so radically against the background of the traditional continental approach and were not initially welcomed with open arms, especially by those authors who were still pursuing Savigny's ideal of a universalist conception of conflict of laws.
One of the first authors to express their negative attitude towards the then-contemporary teachings of the so-called theoretical school43 was Ernest G. Lorenzen. He denounced, first of all, the fact that its proponents based the construction of conflict-of-laws rules on general principles to which they attributed universal validity. Lorenzen, on the other hand, was a proponent of the assertion that real progress within the discipline can only be achieved if one faces the facts, which means that conflict-of-laws rules must be conceived purely as a result of the weighing of various considerations that each sovereign determines for themselves.44 Similarly, Neuner argued against the existence of a priori principles when he presented the view that even the most abstract principles have a core embodying an evaluation of interests.45
The most influential theories departed from the doctrinal tradition of conflict of laws by emphasizing that cases presenting an international element cannot be denied a materially just outcome. Their primary emphasis, though often not their only one, was therefore on substantive considerations. These were, among other things, linked to American realism that rejected the above notion of substantive private law deprived of its regulatory function. It is worth noting, for example, Leflar's better-law approach, which was set against the background of the so-called choice-influencing considerations,46 or the teleological approach of Friedrich K. Junger.47 Probably the most influential scholar, however, was Brainerd Currie and his interest analysis,48 which pointed out the absurdity of isolating conflict of laws from material values and interests embodied by each legislator in its private law. All of these and other theories were the manifestation of the reorientation of conflict of laws from doctrinal ideals to practical considerations, although the shortcomings of these approaches eventually became apparent, culminating in the adoption of the Second Restatement of Conflict of Laws in the 1960s.
4 Transformation
While the American conflicts revolution shook the doctrinal foundations of the traditional continental conflicts doctrine in an attempt to define itself against the rigidity and mechanical application of conflict-of-laws rules, European developments have not seen a surge in theories seeking to do the same as radically. Nevertheless, even on the continent ‘a critique emerged of the traditional conflict-of-laws method with its rigidity and abstractly dogmatic rules, localizing the legal relationship and selecting from the legal orders concerned on the basis of value-neutral conflict-of-laws rules, seeking an unattainable idea of international decisional harmony that resulted in changes both at the legislative and doctrinal level’.49
Changes in the continental approach were rather gradual and had become manifest even decades before the first scholars in the United States began to define themselves against the traditional doctrine. Yet it was not until the second half of the twentieth century that stronger evidence of disengagement with the traditional doctrine began to manifest itself more significantly.50 In doing so, much has been written about whether there was a direct influence or direct interaction between continental and American developments following the echoes of the American conflicts revolution in Europe.51 Either way, the fact remains that conflict of laws has undergone a rapid development that has resulted in a transformation of the conflict-of-laws horizon in several respects.
4.1 Abandoning conflicts objectivity
The first transformation occurred in relation to the assumption that conflict-of-laws rules embody a product of an immutable system derived from the objectively existing category of conflict of laws. The impetus for this change in approach was the recognition that the assumptions on which Savigny had built his system of conflict of laws were not only failing to materialize but were ever more swiftly receding. Thus, against the backdrop of the abandonment of the internationalist approach, the fact that conflict-of-laws rules are a result of a sophisticated balancing of often conflicting values and interests, a process carried out by each individual legislator at national level, became ever more apparent.52 At this stage of breaking away from tradition, one is thus abandoning the first notion of neutrality, which referred to the absence of responsibility of legislators for the construction of conflict-of-laws rules.
However, assuming such responsibility inevitably leads to the realization that a whole range of considerations and values enter into the process of conflict-of-laws rule-making among which a decision has to be made, as they are often contradictory and cannot all be met. In doing so, legislators will not always agree in their assessment of the relevance of the individual factors. A typical example would be the choice between lex loci delicti commissi and lex loci damni infecti, both of which are reasonably acceptable connecting factors that embody several factors linking a category of legal relations to a country or legal order, but legislators may disagree on which of these alternatives to prefer. The choice of the construction of such a conflict-of-laws rule may be motivated by both conflicts values, and material values.
4.2 Abandoning conflicts isolation
To ensure the relevance of material values within conflict of laws, a second transformation had to take place with respect to the traditional continental origins of conflict of laws. The notion that conflict of laws acts as a super-law that stands in isolation on an elevated platform vis-à-vis substantive law53 necessarily implied that only conflict-of-laws values could be taken into account when constructing conflict-of-laws rules. Nowadays, it can be argued without any doubt that conflict of laws is gradually descending from its elevated platform towards interaction with substantive law. In particular since the 1960s, the transformation of conflict of laws from an isolated phenomenon towards the implementation of general trends of social, cultural and, consequently, legal reorientation has become apparent.54 Increasingly, conflict of laws is a reflection of the social function of law, and its rules should therefore be harmonized with the social, legal and economic tradition of the system concerned.55 National conflict of laws forms a part of the general legal system to which it belongs and should consequently follow and reinforce its material interests and values.56 Some authors even argue that consideration and incorporation of material values is imperative.57 Indeed, this was advocated by Willis L. M. Reese, the reporter of the Second Restatement of Conflict of Laws.58 Yet this conclusion cannot be absolute such that it makes such interaction uniform.59 Depending on the particular subject-matter, conflict-of-laws rules may be more or less close to substantive law. Typically, this will be determined depending on how strongly value-based a particular field is, as well as how strong those values are in the perceived value system of that legal system.
At the same time, however, the different levels of rule-making in both substantive and conflict of laws must be considered.60 It is Basedow who argues that if the drafting of substantive and conflict-of-laws rules is conducted on the same level, then such a legislator acts as a conflict-of-laws player who will not be too open to abandoning the values that they themselves enshrine. Conversely, if these areas are separated, i.e., the conflict-of-laws level is established above the level of the respective substantive law, then the legislator may act as an arbiter, a referee between the proclaimed interests of each particular component, where material values need not play such a role in the construction of conflict-of-laws rules.61 However, not even this conclusion can be absolute, since in specific areas there may be cooperation at supranational level between countries that share certain fundamental values and may therefore reflect them in the structure of conflict-of-laws rules, despite not coming from the same level and source of rule-making.
In this context, it would seem that the European Union would be an example of the predominantly neutral role of conflict of laws, as it does not itself provide for a comprehensive set of substantive rules. However, it cannot be ignored that the considerable instrumentalization of EU conflict-of-laws rules is due to the promotion of the interests and values pursued by the internal market. This should not come as a surprise, since even the early international treaties, albeit focused on jurisdictional rules and rules on the recognition and enforcement of foreign judgments, were clearly a part of the integration project. This is confirmed by the Court of Justice, which, in its very first preliminary ruling on the Brussels Convention, stated that it must be interpreted, inter alia, in light of its relationship with the Treaty, which, in Article 220, allowed for the adoption of international treaties which were intended, in effect, to facilitate the achievement of the common market.62 However, as these were standard international treaties, this link with the Community's objectives was not perceived as strongly.63
4.3 Value foundations of substantive private law
For this consideration and interweaving of material values to take place, it was also necessary to recognize the reorientation of private law as such, including in particular the role of states.
The growth of the interventionist and welfare state in the 20th century rapidly transformed the model of society that underpinned Savigny's theory of conflict of laws.64 States were no longer value-detached from private law, which would be seen as free of regulatory intervention and state values.65 Although the regulatory function of private law is often concealed, or at least not as prominent, these values started to become increasingly discernable against the backdrop of substantive rules, for example, in an attempt to prevent socially harmful conduct.66 This is particularly evident in the field of social security, protection of weaker parties such as consumers or employees, etc.67 However, the idea of private law as a regulatory instrument has not been as strong on the European continent as in the United States, which may also reflect the rather negative reception of interest analysis on the European continent.68
Thus, although conflict of laws operates on a meta-substantive level,69 it applies substantive considerations and values as data.70 A fundamental premise of the current approach to conflict-of-laws rules is the belief in their functional orientation.71 Conflict-of-laws rules are no longer governed by purely geographical and conflicts factors, but also by material values and objectives which are reflected in conflicts resolution through connecting factors.72 These may take various forms – alternatives, cumulation, cascades, professio juris, choice of law.
Thus, while the traditional continental system of conflict of laws expressed a preference for certain values only ex post by means of the public policy reservation and internationally mandatory rules,73 in the current concept they are coming to the fore, which is related precisely to the discovery of the regulatory function of substantive private law, as well as to the reassessment of the relationship between conflict of laws and substantive law. Thus, the identification of the closest connection is currently moving away from purely geographical considerations and is instead being permeated by result-oriented or value-oriented techniques, something that was considered unacceptable in the past.74 The theory of a natural, objective seat of the legal relationship has thus been replaced by the theory of ‘sitting pretty’.75 However, this does not mean an absolute ‘either-or’ style of approach to material values. Their implementation in conflict-of-laws rules, and the effort to enforce or protect them, is a matter of degree and choice of the values one wishes to enforce.76 With some degree of exaggeration, one can, therefore, argue that conflict of laws is what we make it to be. In other words, the value choices we make reflect the values we think it might promote.77 Thus, neutrality of conflict of laws can now be discussed more in terms of the extent to which it, as a technique, can resist instrumentalization through the values of various branches of law.78
4.4 Methodology
Developments on the American and European continents, reflecting the outlined changes in the perception of conflict of laws and substantive private law, necessarily led to the rejection of methodological purism as an untenable approach to rational resolution of conflicts between legal orders. This rejection, however, also led to the realization that the differences between some American theories and the continental European model were often only differences in the degree to which they advanced material justice and material values. This can be illustrated, among other things, by the fact that the external transformation of multilateralism in reflection of these developments was almost imperceptible, while internally there was a radical departure from the ideals of the traditional doctrine.79 The present dilemma is thus no longer set in an ‘either-or’ pattern, not only in the sense of values but also in the sense of the methods employed.80 In effect, this convergence has led to methodological differences being gradually obscured, thereby unifying the palette of devices with which conflict of laws operates.81 Ironically, the convergence of previously incompatible approaches and the expansion of the range of devices and methods has led to a universal conception of conflict of laws.82 The remaining differences are thus rather the result of how one handles these instruments, how one uses them, and what one enforces through them. This is because methodological convergence does not necessarily imply value convergence. These steps, in turn, reflect not only one's perception of the role of conflict of laws, but especially one's relationship to the foreign.
4.5 (Changed) relationship to the foreign
Now we come to the question outlined in the introduction. Namely, whether the proliferation of material values into European conflicts resolution has changed the nature of the relationship to foreign law when compared with ‘Savignian tradition’. The author believes that the answer to this question can be both yes and no.
Let us now focus on the ‘yes’ answer. This builds on the above-mentioned fact that the overall development of conflict of laws leads one to abandon methodological purism based on multilateral conflict-of-laws rules. The traditional doctrine of conflict of laws based on Savigny's conception faced a new development.
The changing perception of the nature of private law as a regulatory instrument embodying a whole range of values has translated into greater emphasis on the unilateral method of conflicts resolution. And since the paradoxes of multilateralism have been discussed above, one might resort to the same observation with regard to unilateralism. Indeed, the application of unilateral approaches is often associated with the internal orientation of the forum towards itself, without any concern for relationships outside the reach of the forum law. This external sphere seems to be left to its own fate, as if the forum were indifferent to the foreign. When viewed, however, in terms of expressing an attitude towards the foreign, this method is more open to the values of foreign laws than multilateralism. Although hospitality to foreign law is not absolute even in this case, it does not impose any a priori conditions on the application of foreign law.83 The values of the forum only come into play when the ‘survival of the host [i.e., of the forum – note by the author] is threatened’84 by a particular form of foreign law, through a public policy reservation in the recognition and enforcement stage.
The interweaving of different methods of conflict of laws thus necessarily leads to the conclusion that there cannot be a single expression of the relationship to the foreign. Therefore, it can be in part concluded that the loss of innocence of conflict of laws, in its broader, complex implications, has led to a change in the nature of the relationship to the foreign, when the traditional and the contemporaneous systems of conflict of laws are compared.
Despite the proliferation of unilateral approaches, however, multilateralism still remains the dominant method on the European continent. The relationship of multilateralism to the foreign in its general and, one might say, pure form has already been outlined above when assessing this relationship against the backdrop of Savigny's doctrine. In this section of the paper, the author will, therefore, focus primarily on the ‘no’ answer – that is, why the proliferation of material values has not led to a change of attitude towards the foreign within multilateralism.
When the pure multilateral approach embodies only conflicts values and does not translate material values into the structure of conflict-of-laws rules, it has been stated that by doing so one reduces the image of the foreign in such a way that it does not deviate too far from the course set by the host. If one looks at the modern multilateral approach, one can perceive a whole series of rules that also incorporate material values in their construction. Hence, although one formally continues to apply more or less similar rules, their ideological content has changed considerably.85 Nevertheless, the formal attributes of conflict-of-laws rules offered a mask behind which interest and value analysis in its various forms could hide.86 This phenomenon, however, is not a sign of any certain kind of concern, as a consequence of which one would like to retain their mask. Rather, it is due to the technique of conflict of laws and the nature of the multilateral approach. For here, too, it is the host that defines the conditions under which the foreign will be granted a voice. This decision is not limited to conflict-of-laws values, but also to material values. In fact, it is the material values that are the criterion that is of interest when assessing similarity.
This conclusion is not affected by the fact that these material values may act differently in relation to different legal orders. Thus, if the legal systems concerned are close to each other in terms of values, then even the explicit assertion of material values will not affect the conflicts solution, as it would still appear to be neutral.87 It is quite simple to envisage this situation in the context of EU regulations and the relationship between the respective national legal orders as regards certain fields of law. Although EU regulations promote material values in certain multilateral conflict-of-laws rules, the legal systems of the Member States may be so similar in the values pursued, whether as a result of common legal and cultural developments or as a result of the law of directives, that a conflict-of-laws solution may appear to be strictly neutral (although in this case a rather hypothetical situation is considered, since even the legal systems of the Member States are not identical in every value aspect).
However, let us imagine the opposite situation, where, on the contrary, one deals with a legal order that reflects a completely different culture, legal development, and therefore value foundations. In such a case, it would not be possible to speak of a conflict-of-laws solution untouched by the material value that a multilateral conflict-of-laws rule uses to define the conditions for the application of foreign law. Such a value puts a stop to the foreign law and either does not allow it into the solution at all or only to some extent.
Let us consider both situations by looking at a specific case of the conflict-of-laws rule of the Rome I Regulation, according to which the parties to a contract may choose the law applicable to a consumer contract, but that choice must not deprive the consumer of the protection afforded by the provisions of the legal order that cannot be derogated from by agreement by virtue of the law which would otherwise apply in the absence of a choice of law. Let us assume a situation where a dispute between a Czech consumer and a German entrepreneur is being heard by a Czech court. In the first case, the contract contained a clause stating that the contract was governed by German law. If no choice of law was made, then the applicable law would be determined, subject to the relevant conditions, to be Czech law in accordance with Article 6(1) of the Rome I Regulation. In view of the relatively extensive harmonization of consumer law at EU level, it can be assumed that the differences in the level of protection will not be so great, and therefore this materialization may not have any effect at all in the case of the same or higher protection afforded by German law.
If, however, in this hypothetical case, for whatever reason, the law of New York was chosen, then it can be assumed that consumer protection afforded by that law would not be on par with that afforded by Czech law, with the result that New York law would be superseded in such aspects by Czech law. In such a case, the foreign law would not pass the ‘entry test’ set out in the conflict-of-laws rule.
Despite these diametrically opposed consequences, the author does not believe that the proliferation of material values within the multilateral system has changed the nature of the relationship to the foreign. The conditions set by the host for the admission of foreign law are set the same for all legal orders, and it is therefore only a question of how much foreign law corresponds in value to the host legislator's concepts. The same approach was, however, applied with respect to Savigny's theory. One must, nevertheless, recall the premises of his theory in terms of the presumed value equality of conflicting substantive private laws reflecting the period of liberalism, the idea of conflicts isolation and other elements. That is why it was not so self-evident when compared with the subsequent developments leading up to today. It is thus argued that the loss of innocence and the proliferation of material values within the multilateral system of conflict of laws has not led to a change in the ethical stance towards the foreign.
5 Conclusion
This article has tried to outline the type of transformations that the discipline of conflict of laws has undergone not only in terms of its methodology, but especially in terms of its values. As the various sections have shown, continental-European conflict of laws has transformed from an isolated field of law standing on a pedestal of ideals introduced by Savigny, through the realization of a certain balancing role for legislators, to an instrument driven by both conflict-of-laws as well as material values.
It is true that the growing emphasis on the values and interests underlying private law, and the convergence of the conflict of laws and substantive law, has led in many cases to the proliferation of unilateral approaches. Nevertheless, multilateralism remains the dominant method of regulating private law relations with an international element. Moreover, at first sight, it remains virtually unaffected by the fundamental changes that the discipline of conflict of laws has undergone.
From these observations it can be concluded, first of all, that this development has led to the consolidation of the conflict-of-laws methodological apparatus. Different methods and institutes express different relationships to foreign law. Therefore, if we are to answer the question posed in the introduction of this article, then the following can be stated.
With the interweaving of conflict-of-laws methods, there is also an interweaving of the expression of our relationship to foreign law and its values. As has been pointed out, different methods embody different relationships to foreign law and its values. Therefore, if methodological purism of conflict of laws is presented as untenable, the notion of a relational purism towards foreign law is equally untenable. In part, then, it can be said that the loss of innocence of conflict of laws has led to a transformation of the relationship to the foreign, in the sense of an awareness of the proliferation of different positions into conflicts resolution.
As far as the expression of the relationship to foreign law against the background of transformed multilateralism is concerned, it was argued that the loss of innocence of conflict of laws, reflected in the consideration of material values within the framework of conflicts resolution, does not lead to a fundamental change of attitude towards foreign law and its values. From the point of view of philosophy, we remain in the plane of an ethical attitude of tolerance towards foreign law and its values, where it is the host that sets the a priori conditions of access of foreign law to the resolution of private law relations with an international element before the courts of the forum. Therefore, the question raised in this regard is to be answered by stating that the loss of innocence has not led to a change of attitude towards the foreign against the background of the doctrinal transformations of the multilateral conflict-of-laws method.
While these conclusions may not in themselves transform the doctrinal underpinnings of conflict of laws, the author nevertheless believes that realizing and answering this question has broader implications. The realization of these transformations may open up space for the discussion of what the inherent value of the conflict of laws is and how it can influence the functioning and the future direction of this field of law.
Acknowledgement
This article was written at Masaryk University as part of the project “Úvahy o spravedlnosti pohledem etického vnímání kolizního práva” number MUNI/A/1531/2021 with the support of the Specific University Research Grant, as provided by the Ministry of Education, Youth and Sports of the Czech Republic in the year 2022.
Literature
Banu, R., ‘Conflicting Justice in Conflict of Laws’ (2020) 53 Vand. J. Transnat’l L. 461–523.
Basedow, J., The Law of Open Societies: Private Ordering and Public Regulation in Conflict of Laws (Brill 2015).
Bogdan, M., Private International Law as Component of the Law of the Forum: General Course (Hague Academy of International Law 2012).
Brilmayer, L., ‘The Role of Substantive and Choice of Law Policies in the Formation and Application of Choice of Law Rules’ (1995) 252 Recueil des Cours 9–112.
Currie, B., Selected essays on the conflict of laws (Duke University Press 1963).
d’Oliveira, H. U. J., ‘The EU and a Metamorphosis of Private International Law’ in Fawcett, J. (ed), Reform and Development of Private International Law (OUP 2002) 111–36.
de Boer, Th. M., ‘Facultative choice of law: the procedural status of choice-of-law rules and foreign law’ (1996) 257 Recueil des cours 223–428.
de Boer, Th. M., ‘Forty Years On: The Evolution of Postwar Private International Law in Europe’ in de Boer, Th. M. (ed), Forty Years On: The Evolution of Postwar Private International Law in Europe (Kluwer 1990) 1–14.
de Boer, Th. M., ‘Living Apart Together: The Relationship Between Public and Private International Law’ (2010) 57 NILR 183–207.
de Boer, Th. M., ‘Prospects for European Conflicts Law in the Twenty-First Century’ in Borchers, P. and Zekoll, J. (eds), International Conflict of Laws for the Third Millennium: Essays in Honor of Friedrich K. Juenger (Brill Nijhoff 2001) 193–213.
Dicey, A. V., A Digest of the Law of England With Reference to the Conflict of Laws (3rd edn, Stevens & Sons 1922).
Graveson, R. H., Conflict of Laws: Private International Law (7th edn, Sweet & Maxwell 1974).
Hatzimihail, N. E., ‘Reflections on the international dimension of private international law’ in Jafferali, R., Marquette, V. and Nuyts, A. (eds), Liber amicorum Nadine Watté (Bruylant 2017) 287–301.
Hatzimihail, N., ‘On Mapping the Conceptual Battlefield of Private International Law’ in Kiss, A-C. and Lammers, J.G. (eds), Hague Yearbook of International Law, vol. 13 (Brill Nijhoff 2000) 57–64.
Heilman, R., ‘Judicial Method and Economic Objectives in Conflict of Laws’ (1933) 43 Yale L. J. 1082–108.
Judgment of the European Court of Justice of 6 October 1976, Industrie Tessili Italiana Como v. Dunlop AG, Case 12/76.
Juenger, F. K., ‘General Course on Private International Law (1983)’ (1985) 193 Recueil des cours 119–388.
Juenger, F. K., The Problem with Private International Law (Centro di Studi e Ricerche di Diritto Comparato e Straniero 1999).
Juenger, F. K., ‘Trends in European Conflicts Law’ (1974) 60 Cornell L. Rev. 969–84.
Kahn-Freund, O., ‘General Problems of Private International Law’ (1974) 143 Recueil des cours 139–474.
Kegel, G., ‘The Crisis of Conflict of Laws’ (1964) 112 Recueil des cours 95–263.
Kyselovská, T., ‘Development of EU private international law rules for intellectual property rights’ in Rozehnalová, N. (ed), Universal, Regional, National – Ways of the Development of Private International Law in 21st Century (Masarykova univerzita 2019) 121–37.
Leflar, R. A., ‘Choice-Influencing Considerations in Conflicts Law’ (1966) 41 N.Y.U. L. Rev. 267–327.
Lorenzen, E. G., ‘Territoriality, Public Policy and the Conflict of Laws’ (1923) 33 Yale L. J. 736–51.
Martinek, M. G., ‘Look Back before You Leap – Fateful Tendencies of Materialization and of Parallelism in Modern Private International Law Theory’ (2007) 2007 J. S. Afr. L. 277–91.
Marzal, T. and Pavlakos, G., ‘A Relations-First Approach to Choice of Law’ (2022) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4054663> accessed 18 October 2022.
Meeusen, J., ‘Instrumentalisation of Private International Law in the European Union: Towards a European Conflicts Revolution?’ (2007) 9 European Journal of Migration and Law 287–305.
Michaels, R., ‘Post-critical Private International Law: From Politics to Technique’ in Muir Watt, H. and Fernández Arroyo, D.P. (eds), Private International Law and Global Governance (OUP 2014) 55–69.
Michaels, R., ‘Private International Law and the Question of Universal Values’ in Ferrari, F. and Fernández Arroyo, D.P. (eds), Private International Law: Contemporary Challenges and Continuing Relevance (Edward Elgar 2019a) 148–77.
Michaels, R., ‘Private International Law as an Ethic of Responsivity’ in Abou-Nigm, V.R. and Taquela, M.B.N. (eds), Diversity and Integration in Private International Law (EUP 2019b) 11–27.
Michaels, R., ‘The New European Choice-of-Law Revolution’ (2008) 82 Tulane L. Rev. 1607–44.
Mills, A., The Confluence of Public and Private International Law: Justice Pluralism and Subsidiarity in the International Constitutional Ordering of Private Law (CUP 2009).
Mills, A., ‘The Identities of Private International Law: Lessons from the U.S. and EU Revolutions’ (2013) 23 Duke J. Comp. & Int’l L. 445–75.
Muir Watt, H., ‘Choice of Law in Integrated and Interconnected Markets: A Matter of Political Economy’ (2002) 9 Colum. J. Eur. L. 383–410.
Muir Watt, H., ‘European Integration, Legal Diversity and the Conflict of Laws’ (2005) 9 Edinburgh L. Rev. 6–31.
Muir Watt, H., ‘Foreign Life-Forms and Law’s Ethics of Difference (A View from Private International Law)’ (2017) 12 J. Comp. L. 161–86.
Muir Watt, H., ‘Legal encounters with alterity in post-monist mode’ in Fabra-Zamora, J.L. (ed), Jurisprudence in a Globalized World (Edward Elgar 2020) 26–53.
Muir Watt, H., ‘Private International Law beyond the Schism’ (2011) 2 Transnat’l Legal Theory 347–428.
Mustasaari, S., ‘Rethinking Recognition: Transnational Families and Belonging in Law’ (2017) <https://helda.helsinki.fi/bitstream/handle/10138/225021/RETHINKI.pdf?sequence=1&isAllowed=y> accessed 18 October 2022.
Neuner, R., ‘Policy Considerations in the Conflict of Laws’ (1942) 20 Can. B. Rev. 479–501.
Paul, J. R., ‘The Isolation of Private International Law’ (1988) 7 Wis. Int’l L. J. 149–78.
Reese, W. L. M., ‘The Influence of Substantive Policies on Choice of Law’ in Böckli, P., Eichenberger, K., Hinderling, H., Tschudi, H. P. and Thomann, F. (eds), Festschrift für Frank Vischer zum 60. Geburtstag (Schulthess Polygraphischer Verlag 1983) 287–92.
Reimann, M., ‘Are There Universal Values in Choice of Law Rules? Should There Be Any?’ in Ferrari, F. and Fernández Arroyo, D. P. (eds), Private International Law: Contemporary Challenges and Continuing Relevance (Edward Elgar 2019) 178–94.
Roodt, C., ‘Reflection on Theory, Doctrine and Method in Choice of Law’ (2007) 40 Comp. & Int’l L. J. S. Afr. 76–102.
Roodt, C., ‘The Integration of Substantive Law Interests and Material Justice in South African Choice of Law’ (2003) 36 Comp. & Int’l L. J. S. Afr. 1–24.
Rozehnalová, N., ‘Evropské soukromé právo v. evropské mezinárodní právo soukromé’ (European Private Law v. European Private International Law) in Hurdík, J., Fiala, J. and Selucká, M. (eds), Tradice a inovace v občanském právu: Sborník příspěvků z konference konané na PrF MU ze dne 25. září 2007 (Masarykova univerzita 2007) 112–27.
Rozehnalová, N., Instituty českého mezinárodního práva soukromého (Institutes of Czech Private International Law) (Wolters Kluwer 2016).
Rozehnalová, N., ‘Národní v. evropská úprava aneb je zapotřebí zákon o mezinárodním právu soukromém?’ (National v. European Regulation or Is There a Need for a Private International Law Act?) in Pauknerová, M., et al. (eds), Nové jevy v právu na počátku 21. století. IV. Proměny soukromého práva (Karolinum 2009) 219–29.
Rozehnalová, N., ‘Několik slov k mezinárodnímu právu soukromému a jeho vývoji’ (A Few Words on Private International Law and Its Development) in Rozehnalová N., et al. (eds), K některým vývojovým otázkám mezinárodního práva soukromého (Masarykova univerzita 2013a) 15–26.
Rozehnalová, N., ‘Průniky regionalismu a universality v mezinárodním právu soukromém’ (Intersections of Regionalism and Universality in Private International Law) in Giertl, A. (ed), Regionalizmus: stav, východiská, perspektívy (Univerzita Pavla Jozefa Šafárika v Košiciach 2013b) 14–18.
Struycken, A. V. M., ‘Co-ordination and Co-operation in Respectful Disagreement’ (2004) 311 Recueil des Cours 9–552.
Symeonides, S. C., Codifying Choice of Law Around the World: An International Comparative Analysis (OUP 2014).
Symeonides, S. C., ‘Private International Law: Idealism, Pragmatism, Eclecticism: General Course on Private International Law’ (2017) 384 Recueil des cours 9–385.
Symeonides, S. C., ‘Result-Selectivism in Conflicts Law’ (2009) 46 Willamette L. Rev. 1–32.
ten Wolde, M. H., ‘The Relativity of Legal Positions in Cross-Border Situations: The Foundations of Private Interregional Law, Private Intra-Community Law and Private International Law’ in Conférence de La Haye de Droit international privé. Bureau Permanent (ed), A Commitment to Private International Law: Essays in honour of Hans van Loon (Intersentia 2013) 569–81.
Tichý, L., ‘Nová role mezinárodního práva soukromého a procesního v evropské integraci? (kritická skica)’ (A New Role for Private International and Procedural Law in European Integration? (A Critical Sketch)) (2012) Acta Universitatis Carolinae 101–18.
Trachtman, J. P., ‘Conflict of Laws and Accuracy in the Allocation of Government Responsibility’ (1993) 26 Vand. J. Transnat’l L. 975–1058.
Valdhans, J., ‘Mezinárodně-soukromoprávní tvář profesora Týče, neboli od lex loci delicti commissi k lex loci damni infecti’ (The Private-International-Law Face of Professor Týč, or From Lex Loci Delicti Commissi to Lex Loci Damni Infecti) in Kyselovská, T., Sehnálek, D. and Rozehnalová, N. (eds), In varietate concordia: soubor vědeckých statí k poctě prof. Vladimíra Týče (Masarykova univerzita 2019a) 465–77.
Valdhans, J., ‘Odchylky od neutrálního kolizního řešení’ (Deviations From the Neutral Conflict-of-Laws Resolution) (2019b) <https://www.muni.cz/inet-doc/1147234> accessed 18 October 2022.
Valdhans, J., ‘Vývoj kritérií určujících rozhodné právo a mezinárodní příslušnost v osobních otázkách’ (Evolution of the Criteria for Determining Applicable Law and International Jurisdiction in Personal Matters) in Rozehnalová, N., Kyselovská, T. et al. (eds), K některým vývojovým otázkám mezinárodního práva soukromého (Masarykova univerzita 2013) 115–29.
Van Den Eeckhout, V., ‘Private International Law in an Era of Globalisation: ‘Neutral’ Private International Law!? I Could Be Brown, I Could Be Blue, I Could Be Violet Sky’ (2017) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3034231> accessed 18 October 2022.
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’ (2013) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2338375> accessed 18 October 2022.
von Savigny, F. C., A Treatise on the Conflict of Laws, and the Limits of Their Operation in Respect of Place and Time (translated by William Guthrie, T. & T. Clark Law Publishers 1869).
Vonken, A. P. M. J., ‘Balancing Processes in International Family Law: On the determination and weighing of interests in the conflict of laws and the ‘openness’ of the choice of law system’ in de Boer, Th. M. (ed), Forty Years On: The Evolution of Postwar Private International Law in Europe (Kluwer 1990) 171–94.
Wai, R., ‘Transnational Liftoff and Juridicial Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’ (2001) 40 Colum. J. Transnat’l L. 209–74.
Wolff, L.-C., ‘Flexible Choice-of-Law Rules: Panacea or Oxymoron’ (2014) 10 J. Priv. Int’l L. 431–60.
Roodt (2007) 80.
Struycken (2004) 221.
Apart from managing legal diversity, conflict-of-laws rules also allow for the preservation of such diversity. – Rozehnalová (2007) 121.
Mills (2009) 14.
Symeonides (2014) 503.
Muir Watt (2017) 171–72.
Graveson (1974) 41.
E.g., Kahn-Freund (1974) 244; Struycken (2004) 203 (who speaks of ‘Copernican turn-about’); Juenger (1999) 5 (who uses the term ‘Multilateralist Revolution’).
E.g., Kegel (1964).
E.g., Symeonides (2017) 345.
E.g., Michaels (2008).
Hatzimihail (2017) 289.
Heilman (1933) 1082.
Mills (2013) 449.
Muir Watt (2011) 376.
Michaels (2019a) 160.
Juenger (1974) 978–79.
Reimann (2019) 181 et seq.
Banu (2020) 474.
Mills (2013) 468.
d’Oliveira (2002) 113.
ten Wolde (2013) 571.
Paul (1988) 153.
Muir Watt (2011) 378.
Muir Watt (2011) 378.
Bogdan (2012) 87 et seq.
Muir Watt (2017) 177.
Michaels (2019b) 18; Muir Watt (2017) 167.
Muir Watt (2011) 380.
Muir Watt (2017) 177.
Wolff (2014) 444.
This terminology reflects the dichotomy introduced by Dicey, who distinguished between the theoretical and the positive approach to conflict of laws. He associated the theoretical approach with the legal science of continental Europe and the teaching about the existence of a universally valid principle from which conflict-of-laws rules would derive. The positive approach rejects this deduction of rules and bases their authority on the sovereign of the given territory. – See Dicey (1922) 16–23.
Lorenzen (1923) 745.
Neuner (1942) 480.
Leflar (1966) 267–327.
Juenger (1985) 269 et seq.
Roodt (2007) 89; De Boer (1996) 290 et seq.
See, e.g., Volume 30 (1982) of The American Journal of Comparative Law dedicated to this question.
Martinek (2007) 290; Banu (2020) 475; Brilmayer (1995) 81; Rozehnalová (2013a) 24–26; Valdhans (2013) 115.
Martinek (2007) 279.
Roodt (2003) 3; Bogdan (2012) 87 et seq.
Roodt (2003) 20; Martinek (2007) 290; Implicitly for the field of intellectual property law, Kyselovská (2019) 121–38.
Vonken (1990) 180.
Reese (1983) 287.
Tichý, for example, concludes that the rapid development of EU private international law has only partially been influenced by its immediate context, i.e., by the development of private law. – Tichý (2012) 102.
E.g., Van Den Eeckhout (2017) 2; Rozehnalová (2009) 227, 229; Rozehnalová (2013b) 16.
Basedow (2015) 18.
Meeusen (2007) 288.
Basedow (2015) 11.
Valdhans (2019b) 132.
Wai (2001) 234.
E.g., d’Oliveira (2002) 113.
Muir Watt (2002) 384.
Trachtman (1993) 1032.
de Boer (2010) 203.
Which Savigny anticipated but at the same time stressed that they would, with the convergence of legal systems, gradually disappear as a separate category. For this reason, they will not be examined further in this article.
de Boer (2010) 205; Valdhans (2019a) 472.
d’Oliveira (2002) 117.
Brilmayer (1995) 90; Roodt (2003) 22.
Mills (2013) 472.
de Boer (2001) 194.
de Boer (2010) 203.
de Boer (2010) 205.
Muir Watt (2017) 180.
Muir Watt (2017) 181.
d’Oliveira (2002) 116.
d’Oliveira (2002) 118.
See ten Wolde (2013).
