Accommodative Unilateralism as a Starting Premise in Choice of Law

Abstract

For the last two centuries, the terms "unilateralism" and "multilateralism" have described the two principal methods through which courts or legislatures choose the law governing cases that have contacts with more than one state. Both terms are misleading. In choice of law (as opposed to foreign policy), unilateralism need not be chauvinistic or ethnocentric, and multilateralism can be more self-centered and one-sided than unilateralism. This Article discusses the origins, historical antagonism, co-existence and contemporary operation of these two mislabeled methods and attempts to dispel the prevailing misunderstandings about unilateralism.

The Article suggests that, properly understood, unilateralism is a sensible and appropriate starting premise in the choice-of-law inquiry. It can help identify and properly resolve one category of conflicts of laws - the so-called "false conflicts." It also can resolve most "true conflicts," provided it sheds its ethnocentric baggage and adopts the goal of accommodating the conflicting interests of the involved states ("accommodative unilateralism"), rather than systematically advancing the interests of the forum state (Currie's unilateralism). For the remaining conflicts, unilateralism has little to offer; thus the choice-of-law inquiry must resort to other criteria of conflict resolution such as those proposed by multilateralism. This Article provides examples of such criteria and explains why a conscious combination of unilateralism and multilateralism is preferable to the methodological purism that has thus far led to spectacular impasses in both directions.

Keywords: Choice of law, conflict of laws, private international law, international law, comparative law, extraterritoriality, jurisdiction