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Abstract:
The functional method has become both the mantra and the bête noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, "the functional method" is a trifold misnomer: There is not one ("the") functional method but many, not all methods so called are functional at all, and some projects claiming adherence to it do not even follow any recognizable method.

This paper first places the functional method in a historical and interdisciplinary context, in order to see its connections with, and peculiarities opposed to, the debates about functionalism in other disciplines. Second, it tries to use the functionalist method on the method itself, in order to determine how functional it is. This makes it necessary to place functionalism within a larger framework - not within the development of comparative law, but instead within the rise and fall of functionalism in other disciplines, especially the social sciences. Thirdly, the comparison with functionalism in other disciplines enables us to see what is special about functionalism in comparative law, and why what would in other disciplines rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law.

This analysis leads to surprising results. Generally, one assumes that the strength of the functional method lies in its emphasis on similarities, its aspirations towards evaluation and unification of law. Actually, the functional method emphasizes difference, it does not give us criteria for evaluation, and it provides powerful arguments against unification. Further, one generally assumes that the functional method does not account sufficiently for culture and is reductionist. However, the functional method not only requires us to look at culture, but also enables us, better than other methods, to formulate general laws without having to abstract from the specificities.

The problem is that the functional method, as generally described, combines a number of different concepts of function: an evolutionary concept, a structural concept, a concept focusing on equivalence. The relation between these different concepts within the method is unclear, its aspirations therefore unrealistic. If we reconstruct the method plainly on the basis of functional equivalence as the most robust of the three concepts of function and emphasize an interpretative as opposed to a scientific approach, we realize that the functional method can make fewer claims, but at the same time is less open to some of the critique voiced against it. In short, the functional method is strong as a tool for understanding, comparing, and critiquing different laws, but a weak tool for evaluating and unifying laws. It helps us in tolerating and critiqueing foreign law, it helps us less in critiquing our own.

Abstract:
One of the most pertinent issues in contemporary European conflict of laws is the tension between Community law and traditional choice of law rules. The biggest problem comes not from the transposition of member state rules on choice of law into methodologically comparable EC Regulations, but rather from the so-called country-of-origin principle. This principle holds, broadly, that EU member states may not impose obligations on a provider of goods and services that go beyond the obligations imposed by the provider's home state. Originally conceived mainly with public law obligations in mind, the principle has an impact on choice of law insofar as it bars member states from applying their own law to the provider's conduct, even if they have the closest connections to this conduct.

The exact relationship between the so called country of origin principle, and private international law, has long puzzled scholars and courts. Yet attempts at explanation and reconciliation have so far been unsuccessful because they started from an inappropriately narrow understanding of private international law. Integrating comparative legal history, this paper proposes a broader understanding of private international law beyond the current post-Savignyan approach. Thus broader approach makes it possible to recognize how the country of origin principle is remarkably similar to an almost forgotten and universally rejected private international law approach - the vested rights theory. The article demonstrates the parallels between the country of origin principle and US, English, French and German historical versions theories of vested rights.

This insight presents an interesting challenge. The vested rights theory is now universally rejected because the criticism brought forward against it was and is felt to be irrefutable. One might think the same criticism would be able to bring the country of origin principle down, too. Indeed, the article shows how current criticism of the country of origin principle replicates to a large degree earlier criticism made against the vested rights theory. Remarkably, however, it shows also that the country of origin principle can refute the criticism.

The return of vested rights, and its regained ability to overcome seemingly irrefutable criticism, hold a broader lesson. The rise and fall (and rebirth) of private international law approaches depends less on abstract considerations and more on general ideas and ideologies of the times - in this case, economic liberalism.

Abstract:
How can conflict of laws respond to the challenges from globalization? Some argue that state-based approaches like governmental interest analysis are inadequate, and advocate a return to the approach taken by the German scholar Savigny in the 19th century. The article shows that the assumption is correct: state-based approaches have indeed become problematic. However, a return to Savigny's approach will not help: While Savigny's approach is multilateral and pays little regard to governmental interest, closer analysis reveals how central the state is to his theory. The consequences are shown in an analysis of a recent European case. It follows that we will have to think more radically about proper conflict of laws responses to globalization if we want to overcome the centrality of the state.

Savigny, private, international law

Abstract:
Although the changing relation between private law and the state has become the subject of many debates, these debates are often unsatisfactory. Concepts like 'law', 'private law', and 'globalization' have unclear and shifting meanings; discussions are confined to specific questions and do not connect with similar discussions taking place elsewhere. In order to initiate the necessary broader approach, this article brings together the pertinent themes and aspects from various debates. It proposes a conceptual clarification of key notions in the debate - private law, state, Europeanization, globalization, and privatization - that should be of use beyond the immediate purposes of the rest of the article. And it suggests how one should analyze and categorize both the problems the modern developments create and the solutions that these problems might call for. It does not attempt to analyze which solution is the best one. But in unveiling common structures, both within and between the various debates, the article should help significantly in providing the further discussion of these solutions with a more rational framework.

Abstract:
Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines - comparative law, conflict of laws, public international law, and European Union law - have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism - the definition of law, the role of the state, of community, and of space - are altered under conditions of globalization. It addresses interrelations between different legal orders and various ways, both theoretical and practical, to deal with them. And it provides an outlook on the future of global legal pluralism as theory and practice of global law.

state, community, international law, comparative law, conflict of laws, recognition

Abstract:
Is there an anational lex mercatoria, a global law without a state? The debate seems infinite. Some argue that the rules, institutions, and procedures of international arbitration have now achieved a sufficient degree both of autonomy from the state and of legal character that they represent such an anational law. Others respond that whatever law merchant may exist is really state law - dependent on national norms and the freedom of contract they provide, and on the enforceability of arbitral awards by national courts.

This paper suggests that the dichotomy of anational law and state law is false. Although an anational law merchant would be theoretically possible, the true lex mercatoria we are currently observing is not such an anational law. Rather, it is an emerging global commercial law that freely combines elements from national and non-national law. This transnational law presents a far more radical challenge to traditional state-based conceptions of law than the idea of an anational law. It makes the distinction between anational law and state law that permeates the debate over law merchant simply irrelevant by transcending it. The true lex mercatoria marks the shift in global law from segmentary differentiation in different national laws to a functional differentiation. It a law beyond, not without, the state.

Abstract:
Conflict of laws in Europe was long viewed by outsiders as formalist, antiquated, and uninteresting. Now that the European Union has become more active in the field, things are changing, but most view these changes as a mere gradual evolution. This is untrue. Actually, and fascinatingly, we are observing a real European conflicts revolution-in importance, radicalness, and irreversibility comparable to the twentieth-century American conflicts revolution. European developments go beyond the federalization of choice-of-law rules in EU regulations. In addition, EU choice of law is being constitutionalized, in particular through the principles of mutual recognition and the country-of-origin principle, along with the influence from nondiscrimination, EU citizenship, and EU fundamental rights. Together, these developments create a methodological pluralization that leads to a bifurcation of intra-Community and external conflicts and to a conflict between two methods, one developed on the basis of classical choice of law, the other based on specific EU-law reasoning. These developments constitute a genuine choice-of-law revolution. Classical European choice of law was characterized by three principles: privatization, nationalization, and domestic internationalism. These are replaced by three new principles: regulation, Europeanization, and mediatization. This revolution is different from that in the United States, but it nonetheless holds important lessons.

In the course of the argument, this Article introduces the other contributions to this issue. These articles were first delivered at a Symposium, jointly organized by the Duke Law Center for International and Comparative Law and the Tulane Law Review, and titled The New European Choice-of-Law Revolution-Lessons for the United States?

Abstract:
The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique."

In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts - the field's high degree of technicality disparaged as a "conflict-of-laws machine" and the multitude of theories famously deemed a "dismal swamp" - that figure among the advantages of a conflict-of-laws approach to international law in domestic courts.

A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism - which, we argue, conflict of laws is uniquely positioned to address.

International law and domestic courts, Conflict of Laws, Private International Law, International Law

Abstract:
Private international law (choice of law) is generally considered a discipline in dire need of a methodological approach. Can law and economics bring more scientific, objective foundations? This article sheds light on this question, from the example of choice of law in torts.

The first object of this article is to provide an analysis of three particular questions in the private international law of torts - the common domicile exception to lex loci, party autonomy, and cross-border torts - from an economic perspective. This article differs from others insofar as I make arguments on each of these questions not within one but within two economic paradigms, a private law paradigm and an international law paradigm.

This relates to the second object of this article. I want to test the hypothesis that different paradigms lead to different outcomes, that the different results within different economic paradigms are congruent with the different views within traditional doctrinal private international law, and that therefore the debate whether private international law is private or (public) international law, is replicated in the economic analysis of private international law, and. If this is so, it suggests that the choice of one paradigm or another cannot only be justified in passing in a short introduction, as is the case in many economic analyses. Rather, for a robust normative analysis, this choice must be central to an economic analysis.

torts, international, law

Abstract:
Should choice of law norms ever designate non-state norms as applicable law? The question is not new of course, although it is seldom discussed systematically. Yet the question moves from the periphery to the center once we view conflict of laws through the lens of globalization. If, through the lens of globalization, states and non-state communities both create norms, this should pose a challenges to conflict of laws rules that traditionally only designates state norms as applicable law. Somewhat surprisingly, conflict of laws and global legal pluralism rarely meet, so far, in analyses.

This paper does not set out its own theory of conflict of laws for global legal pluralism. Instead, its goal is more modest: to attain conceptual clarity about the encounter of pluralism and conflict of laws that would make such a theory possible. To this end I ask four questions: First, what is global legal pluralism, and to what extent can the normative orders created by non-state communities be considered as "law" from a theoretical standpoint? (II.) Second, how does state law, including conflict of laws, currently deal with non-state normative order? I will show that the rejection of non-state law by traditional conflict of laws doctrine must be understood in combination with the other methods the state uses to account for non-state normative orders which I call incorporation, deference, and delegation. The combination shows that the state does acknowledge non-state normative orders, but it does not acknowledge them as law. (III.) This leads to the third question, namely why the state acknowledges the laws of foreign states as law while denying this status to non-state normative orders. The reason is that the state would otherwise undermine its own position: while treating foreign state law as law strengthens its position, treating non-state law as such would weaken it (III.C.). (IV.) Of course, such weakening of the state need not be a bad thing, and the fourth question therefore asks what a more inclusive approach to conflict of laws, recognizing non-state normative orders as law, would require and imply. This fourth question cannot be answered in full here, but I try to show that such a reconceptualization of the state would be more far-reaching, and potentially less attractive, than proponents of legal pluralism may wish for (V.). I conclude with a cautionary note: the relation between global legal pluralism and conflict of laws is more complex, and may necessitate more radical rethinking of traditional ideas, than one might think (VI.)

Abstract:
The relation of private law to the state is one of the most complex aspects of the challenges posed for the law by Europeanization and globalization. It is not only distinct from that between public law and the state; it is also not the same in different legal systems. This article provides a historical and comparative overview of this relation in Germany and in the United States. It analyses the historical conditions and reasons for which the state became the ultimate source of authority for private law in Europe but remained largely without importance for doctrinal discussions and jurisprudential decisions within private law. It also identifies some factors that can explain largely different developments in the United States, where, despite the conceptual absence of the state within private law, private law was never seen to the same degree as autonomous from social policy. On the basis of these comparative and historical observations, the article concludes with more general, theoretical remarks on some of the problems that may be seen as core aspects of the relation of private law and the state.

Abstract:
The law of jurisdiction and of the recognition and enforcement of foreign judgments is confused. So is the debate about it. Basic concepts, even that of jurisdiction, have ambiguous meaning. Misunderstandings, most prominent in the failure to conclude a worldwide judgments convention at the Hague, are the consequence.

This article tries to bring conceptual clarity to the field through an analysis of concepts and relations. The article first shows that jurisdiction as a requirement for the rendering of a decision (direct jurisdiction) and jurisdiction as a requirement for the decision's enforceability elsewhere (indirect jurisdiction), are logically independent from each other. It goes on to show that the three possible values of deontic logic - obligatory, optional, and impermissible conduct - are reflected in three possible statuses that jurisdictional bases can have: such bases may be required, excluded, or permitted. A combination of both distinctions leads to nine different possible combinations of direct and indirect jurisdiction. The article analyzes each of these nine in detail.

Such an analysis is crucial for the drafting of judgment conventions. Traditionally, a distinction existed between so-called single conventions that regulate only enforcement of foreign judgments, and double conventions that regulate also direct jurisdiction. Arthur von Mehren, for whose memorial volume this article is written, developed a third category, the so-called mixed convention. Although it represented a considerable improvement, the exact structure of mixed convention never became fully clear. This article proposes a new typology that is both richer and more exact.

Although the article draws on rich comparative material from existing conventions, and although it emphasizes repeatedly the normative implications both of different values for jurisdictional bases and of different types of conventions, the article's prime aim is analytical, not normative. However, far from being a mere formalist exercise, such an analysis lays the indispensable prerequisites for a proper normative analysis. The definition of clear concepts does not guarantee proper policy debates, but without clear concepts policy debate is impossible. In this sense, the paper hopes to help provide new foundations for such debates.

Abstract:
The relationship between public and private international law, the issue of the excellent book under review, has often been addressed. But the question is ever new because it is asked under ever-changing circumstances. First, circumstances differ between countries. In the United States, there has long been a tendency towards unifying public international law and (international) choice of law (which is, tellingly, dealt with in the Restatement for Foreign Relations).

Abstract:
This introduction to our co-edited special issue of Law and Contemporary Problems addresses how interdisciplinary studies might contribute to the revitalization of the field of Conflict of Laws. The introduction surveys existing approaches to interdisciplinarity in conflict of laws - drawn primarily from economics, political science, anthropology and sociology. It argues that most of these interdisciplinary efforts have remained internal to the law, relating conflicts to other legal spheres and issue areas. It summarizes some of the contributions of these projects but also outlines the ways they fall short of the full promise of interdisciplinary work in Conflicts scholarship, and indeed often replicate the very shortfalls of Conflicts doctrine that they set out to overcome. Drawing on examples from the symposium, the article then argues that there is much to be gained - in both law and other fields - from a more "external" interdisciplinarity that engages nonlegal disciplines such as economics, political science, and anthropology in a more serious and sustained way. It outlines a number of ways cross-disciplinary engagement, like the kind in this symposium, can push the project further: by approaching the study of conflicts through its discourse and imagery, through the historical and present-day context of colonialism, and through ethnographies that detail how its doctrines are experienced and produced in the real world. The final section discusses how the interdisciplinary insights yielded by the symposium might provide a richer and more productive techniques and practices for addressing conflict of laws problems.

conflict of laws, private international law, legal theory, colonialism, feminism, anthropology, legal history

Abstract:
If economics is about choice, then economics of law should be about choice of law. In a broad sense, this is the case. Normative law and economics tells us what kinds of legal regimes to choose from the various models we can think of; choice of law tells us which of actually existing regimes applies. In view of this similarity in sensitivities between choice of law and law and economics, it is not surprising that we see law and economics applied to choice of law. Where choice of law is viewed as too conceptual and abstract, economics promises much-needed pragmatism. Where choice-of-law doctrine is chided for its oblivion to the practical impact of its rules, law and economics promises to provide empirical foundations. Where choice of law is viewed as devoid of theory, economics promises to be that theory. Where choice of law is viewed as hopelessly complex, economics promises to provide clear guidelines.

This article analyzes how far economic models can function as doctrine. It finds that economics does not and probably cannot fulfill this function. It is the heroic failure of economic analysis, not its claimed success, that presents a real, and immensely valuable, contribution. Economic models achieve clarity, but the unrealistic abstractions necessary to achieve it only highlight the inescapable messiness of the problems with choice of law. The isolation of certain values in the economic analysis, especially those of private and public ordering, respectively, shows that it is the combination of, and the conflict between, these values that defines the field. The failure of attempts to develop new solutions on the basis of abstract economic reasoning, regardless of existing doctrine, makes us see clearly the high degree of disciplinary knowledge that is present, though often unacknowledged, within our doctrinal concepts and rules, imperfect as they are.

choice of law, country of origin, governmental interest analysis, better-law approach