Elgar Encyclopedia of Comparative Law, Second Edition
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Elgar Encyclopedia of Comparative Law, Second Edition

  • Elgar original reference

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.
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Chapter 56: Private international law*

Horatia Muir Watt

Extract

Private international law and comparative law may to a large extent be considered to be complementary, since they both focus on differences between legal systems. While the former is essentially designed to provide practical solutions to international or cross-border disputes potentially subject to diverse laws and several courts, nevertheless, it cannot dispense with the reflection which comparative law offers on the theoretical and cultural significance of varying legal responses to an identical problem – a significance which, in many cases, the very use of legal rules outside their original context in order to resolve an issue raising a conflict of laws may serve to reveal. Moreover, to the extent that traditional versions of both disciplines tend to be largely state-centred, comparative law and private international law are similarly challenged today by the radical changes affecting the nature and role of the law in a global environment. Contemporary transformations of the global legal order include the emergence of sources of normativity beyond the state, the rise of human rights with extra-territorial reach, and the empowerment of private actors surfing on the free movement of capital and services. In this respect, theories in private international law and comparative law that have developed outside the mainstream are likely to come into their own, insofar as they have promoted ideas of community, consensus, and tolerance rather than relying on schemes of formal law and projects of assimilation.

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