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Toward A New Dialogue Between Conflict of Laws and International Law

Part of: Third Restatement of Conflict of Laws

Published online by Cambridge University Press:  20 January 2017

Christopher A. Whytock
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International law, as it appears in the pages of the American Journal of International Law, is largely public international law. Conflict of laws is usually considered to be either outside international law or part of private international law. This symposium in AJIL Unbound, with its focus on the Restatement of the Law (Third) Conflict of Laws, is therefore noteworthy. It also is welcome, because there is much to gain from thinking about conflict of laws and international law together.

Type
Symposium on the Third Restatement of Conflict of Laws
Information
AJIL Unbound , Volume 110 , 2016 , pp. 150 - 154
Copyright
Copyright © American Society of International Law 2016

References

1 See, e.g., Michaels, Ralf, Public and Private International Law: German Views on Global Issues, 4 J. Priv. Int’l L. 121 (2008)Google Scholar; Alex Mills, the Confluence of Public and Private International Law—JUSTICE, Pluralism and Subsidiarity in the International Constitutional Ordering of Private Law (2009).

2 Reimann, Mathias, A New Restatement—For the International Age, 75 Ind. L. J. 575, 577 (2000)Google Scholar.

3 Id. at 577 n.17 (2000).

4 Id. at 577 (2000).

5 See generally, Knop, Karen et al., From Multiculturalism to Technique: Feminism, Culture, and the Conflict of Laws Style, 64 Stan. L. Rev. 589 (2012)Google Scholar; Whytock, Christopher A., Conflict of Laws, Global Governance, and Transnational Legal Order, 1 U.C. Irvine J. Int’l, Transnat’L, & Comp. L. pt. II.B (forthcoming 2016)Google Scholar.

6 See Whytock, Christopher A., Domestic Courts and Global Governance, 84 Tulane L. Rev. 67, 74-83 (2009)Google Scholar.

7 See § 1.01, cmt. e (2016) (“The rules stated in this Restatement . . . conform to the requirements of public international law. Applying these rules will not, in the absence of a treaty provision to the contrary, violate the obligations states owe each other under public international law.”).

8 See Whytock, supra note 5, at pt. Ii.B.

9 Id. at pt. III.A-B.

10 Id. at pt. II.A.

11 For example, the work of the reporters on the current draft of the new Conflicts Restatement’s concepts of “habitual residence” and “marital center” was significantly aided by analysis of international and supranational law. See § 2.02, Reporters’ note 5; § 7.13, Reporters’ note 4.

12 See § 5.06, Reporters note 1 (“This Section’s definition of foreign law does not include international law.”).

13 See, e.g., Michaels, Ralf & Pauwelyn, Joost, Conflict of Norms or Conflict of Laws?: Different Techniques in the Fragmentation of Public International Law, 22 Duke J. Comp. & Int’l L. 349–376 (2012)Google Scholar; Knop, Karen et al., International Law in Domestic Courts: A Conflict of Laws Approach, 103 Asil Proceedings 269 (2009)Google Scholar.

14 See also, Childress, Donald Earl III, Comity as Conflict: Resituating International Comity as Conflict of Laws, 44 U.C. Davis L. Rev. 11 (2010)Google Scholar (arguing that the international comity doctrine is rooted in conflict-of-laws theory and that conflict-of-laws methodology can improve international comity analysis).

15 See, e.g., Tim Büthe & Walter Mattli, the New Global Rulers: the Privatization of Regulation in the World Econ Omy (2011); Anne-Marie Slaughter, A New World Order (2004).

16 Whytock, Christopher A., From International Law and International Relations to Law and World Politics, in Oxford Encyclopedia of Politics (Thompson, William ed., forthcoming 2016)Google Scholar.

17 See, e.g., Cohen, Edward S., Constructing Power Through Law: Private Law Pluralism and Harmonization in the Global Political Economy, 15 Rev. Int’l Pol. Econ. 770 (2008)Google Scholar; Private International Law and Global Governance (Horatia Muir Watt & Diego P. Fernán dez Arroyo eds., 2014); Whytock, supra note 6; Whytock, Christopher A., Myth of Mess? International Choice of Law in Action, 84 N.Y.U. L. Rev. 719 (2009)Google Scholar; Whytock, Christopher A., The Evolving Forum Shopping System, 96 Cornell L. Rev. 481 (2011)Google Scholar.

18 See, e.g., Kaczmarek, Sarah C. & Newman, Abraham L., The Long Arm of the Law: Extraterritoriality and the National Implementation of Foreign Bribery Legislation, 65 Int’l Org. 745 (2011)Google Scholar; Tonya L. Putnam, Courts Without Borders: Law, Politics, and U.S. Extra Territoriality (2016); Kal Raustiala, Does the Constitution Follow the Flag? the Evolution of Extraterritoriality in American Law (2009).

19 See, e.g., Efrat, Asif & Newman, Abraham L., Deciding to Defer: The Importance of Fairness in Resolving Transnational Jurisdictional Conflicts, 70 Int’l Org. 409 (2016)Google Scholar.

20 See, e.g., Claire Cutler, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003); Thomas Hale, Between Interests and Law: the Politics of Transnational Commercial Disputes (2015); Walter Mattli & Thomas Dietz, International Arbitration and Global Governance: Contending Theories and Evidence (2014).

21 Reimann, supra note 2, at 576 (2000).

22 Juenger, Friedrich K., The Need for a Comparative Approach to Choice-of-Law Problems, 73 Tulane L. Rev. 1309, 1329 (1999)Google Scholar.

23 See Letter Dated September 24, 2014 from Kermit Roosevelt to Ricky Revesz (on file with the author) (noting that a new Restate ment “would provide an opportunity to pay greater attention to the international context than the Second Restatement did. Conflicts issues—whether choice of law, recognition of judgments, or domestic relations—now frequently involve not two U.S. states but a state and a foreign country. It would be valuable to reassess Second Restatement rules in light of the increased presence of international factors, and also to consider attempts to learn from or harmonize with foreign approaches.”).

24 See Wood, Diane P., Diffusion and Focus in International Law Scholarship, 1 Chi. J. Int’l L. 141, 141, 147-48 (2000)Google Scholar (commenting that “[e]ven if parochialism can be forgiven in some areas (though it is hard to say which ones), surely it has no place in a field devoted to reaching across national boundaries”; noting “the parochial approach to international legal matters that characterized much of the twentieth-century”; and calling on international law scholars in the United States to “abandon parochialism in method, in thought, and in outcome”).

25 See, e.g., Ehrenzweig, Albert A., Interstate and International Conflicts Law: A Plea for Segregation, 41 Minn. L. Rev. 717 (1957)Google Scholar (arguing for separate conflict-of-laws rules for the domestic and international contexts); Scoles, Eugene F., Interstate and International Distinctions in Conflict of Laws in the United States, 54 CAL. L. Rev. 1599 (1966)CrossRefGoogle Scholar; Hay, Peter, International versus Interstate Conflicts Law in the United States: A Summary of the Case Law, 35 Rabel J. Comp. & Int’l Priv. L. 429 (1971)Google Scholar (showing that separate approaches are not always necessary); (showing that U.S. courts in practice do not tend to use different approaches).

26 See § 1.04, cmt. c. (“For the purposes of conflict of laws, the interstate and international contexts are broadly similar. The rules in this Restatement are also usually applicable to cases with contacts to one or more foreign nations. This is properly so since similar values and considerations are involved in both interstate and international cases. When a rule should be limited in its application to one or the other context, that limit is noted explicitly.”). See also, Michaels, Ralf, The Conflicts Restatement and the World, 110 AJIL Unbound 155, 157 (2016)CrossRefGoogle Scholar (“[I]nterstate transactions are importantly different from international transactions. Differences between state and foreign nation laws are greater than differences between sister state laws. The Constitution applies only in part to such conflicts. On the other hand, only international transactions are influenced by international law and by foreign relations and foreign commerce considerations.”).