Contemporary Challenges and Continuing Relevance
Edited by Franco Ferrari and Diego P. Fernández Arroyo
Chapter 6: Are there universal values in choice of law rules? Should there be any?
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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