Contemporary Challenges and Continuing Relevance
Edited by Franco Ferrari and Diego P. Fernández Arroyo
Chapter 2: Certainty versus flexibility in the EU choice of law system
Flexibility is generally considered to be in an inverse relation to the principle of legal certainty and this relationship is deemed to reflect the classical dichotomy between certainty and justice. In particular, the perpetual tension between the need for predictability and the desire for flexibility is viewed as typified by the history and evolution of conflict of laws. Read through the lens of a new conceptualization, however, legal certainty and flexibility – as inherently conflicting as they may prima facie appear – do not seem to be incompatible aspirations; this is confirmed by prominent examples of systems that consider a synergy between the concepts as possible and even necessary. This chapter focuses on the EU choice of law system and argues that the solutions embraced in the EU framework clearly prove that legal certainty, as a ‘very part of justice’ , requires flexibility, and that the balancing act which defines the terms of their interaction does fit within the conceptual framework of the traditional methodology.
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