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  • Series: Elgar Monographs in Private International Law x
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Edited by Franco Ferrari and Diego P. Fernández Arroyo

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Franco Ferrari and Diego P. Fernández Arroyo

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Kermit Roosevelt III

Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one and you inevitably decrease the other. This chapter challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty and flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary trade-off between certainty and flexibility, there is no necessary trade-off between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The chapter demonstrates how this has happened in the history of choice of law and how it can be accomplished in the future.

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Francesca Ragno

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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Giuditta Cordero-Moss

Starting from party autonomy’s generally recognized importance in international commerce, this chapter argues that the parties’ ability to choose the applicable law is not an absolute universal principle. It is a conflict rule deriving from state private international laws. This implies various restrictions. Recognizing the limits of party autonomy, however, is more friendly to international commercial contract practice and arbitration than assuming that party autonomy is absolute. It allows for the applicable law to be predicted and for valid and enforceable arbitral awards to be rendered. Furthermore, it prevents an erosion of trust in the institution of arbitration, which in turn may result in restricted arbitrability. The chapter discusses the scope and object of party autonomy in courts and in arbitration. In arbitration, parties may choose non-state law (‘rules of law’). Considered to be party autonomy’s apotheosis, paradoxically, choosing these sources may end up limiting contract freedom.

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Symeon C. Symeonides

Party autonomy – that is, the notion that parties to a multistate contract should be allowed, within certain parameters and limitations, to agree in advance on which state’s law will govern their contract – is now a universal principle; it is accepted in at least 150 countries. However, this virtual unanimity at the level of general principle comes with significant variations in the specifics. Party autonomy is neither conceived nor implemented in the same way in most countries. The most significant differences involve the scope of this principle and the limitations to which it is subject. For example, various legal systems differ on which contracts and for which contractual or non-contractual issues the parties may choose the applicable law; or whether they may choose rules that straddle the line between substance and procedure, or rules promulgated by non-state entities. Likewise, differences exist not only in defining the appropriate public policy threshold for policing party autonomy, but also on which country’s threshold should perform this role – that is, whether it should be forum state as such, the state whose law would have been applicable in the absence of party choice or some combination of the two solutions. An awareness of these often overlooked differences is essential not only for lawyers who draft multistate contracts, but also for teachers and students of private international law or conflicts law. This chapter offers a comprehensive documentation and comparative analysis of these differences.

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Ralf Michaels

Private international law presumes, and responds to, plurality – of laws and of values. How does it then respond to ideas about universal values? In fact, the question involves three tensions: between formalism and values, between private international law and substantive law, and between plurality and universality. Private international law cannot isolate itself from questions of value, but how should it account for them? Attempts to explicitly take on conflicts of laws as conflicts of substantive values, as for example in the better law theory, have intrinsic weaknesses. Attempts to resolve such conflicts in the name of universal conflicts values are more promising. But existing conflicts values are in conflict among themselves and there is no set of meta-values that can resolve these conflicts. Ultimately, the chapter suggests two universal values that are specific to conflict of laws: responsivity and technicality.

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Mathias Reimann

This chapter conceives of ‘universal values’ as the fundamental normative premises generally accepted in Western-style choice of law systems. These premises have changed significantly over the last 50 years. The traditional (Savignian) system’s four major premises – equality of legal systems, neutrality of conflicts rules, uniformity of outcomes and predictability of decisions – have eroded to the point where they should no longer be considered ‘universal’. At the same time, we have seen the ascendance of three other normative premises: party autonomy, protection of party expectations and state self-preference. This shift evinces a transition from the classic private law model to what may be called regulated transnationalism. In this new environment, we should embrace a broader value – fundamental fairness: choice of law rules should designate a (substantive) law that imposes obligations on a party only if that party either is a member of the community enacting that law or has submitted itself, explicitly or implicitly, to the law of the respective jurisdiction.

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Verónica Ruiz Abou-Nigm

Private international law’s impact on global migration governance has so far been short of its potential. How is it possible that in a field where the focus is on the cross-border mobility of individuals and international cooperation is considered crucial, private international law’s contribution is not greater? What gets in the way of further disciplinary impact? This chapter argues that this is partly a problem of perception: a disciplinary outreach deficiency affecting private international law more profoundly. Improving outreach is necessary to succeed in further engaging with global governance issues. Efforts in this direction should include openly embracing decentralization and diversity, and with it turning the focal point from harmonization to coordination; from top-down to multidirectional connections; from tolerance to integration; from state-focused to individual-enabling approaches. These shifts are as paramount to global migration governance as to private international law.

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Hans van Loon

Global private international law unification through multilateral treaties: (1) elevates the idea of justice pluralism to the global level; (2) orders the diversity of national and regional private international law systems, and creates permanent channels for direct transnational institutionalized cooperation among national administrations and courts around the world, thus ensuring continuity across borders of legal status and family and business relations established under national and regional laws; and (3) reflects globally recognized human and economic rights. Examples are given of the present transnational legal ordering role of Hague Conventions in the fields of family law, legal cooperation and commercial law, and of future possibilities for private international law instruments in support of global governance, such as facilitating access to foreign law; further ensuring continuity of personal status and family relations across borders; and linking private international law unification to the United Nations 2030 Agenda, in particular regarding the challenges of migration and environment and climate change.