Deciding Who Decides in Conflict of Laws: An Institutional Perspective

32 Pages Posted: 15 Aug 2014 Last revised: 22 Aug 2014

See all articles by Paul Jurcys

Paul Jurcys

Prifina; Vilnius University - Faculty of Law

Toshiyuki Kono

Kyushu University - Graduate School of Law

Date Written: June 8, 2014

Abstract

This paper aims to review the current law and economics debate of the issues that surround private international law disputes. There have been various attempts to explain various aspects of cross-border disputes between individuals. The existing theories tend to focus on efficiency (cost-and-benefit) analysis from the angle of states or private individuals. The efficiency perspective significantly contributed to the conflicts scholarship by unraveling some of the core problems with traditional legal theories. Nonetheless, in this paper we try to suggest that the current debate does not capture the institutional aspect of the Coasean proposition about transaction costs. Namely, cost-and-benefit perspective mainly focuses on the functioning of the market mechanisms in different settings. This paper aims to offer an institutional account by comparing how market, adjudicative and political processes interact with each other in conflict of laws settings. Comparing alternative institutional settings offers a dynamic view of the regulatory cycling in conflict of laws. After reviewing main insights proposed by advocates of comparative institutional approach, we move on analyzing three case studies trying to illustrate the cycling aspect among various regulatory alternatives. Institutional perspective is one of the possible ways to explain the dynamic element of conflict of laws; it has a great potential in furthering academic and practical studies on the improvement of conflicts methodology.

Keywords: law and economics, institutional analysis

Suggested Citation

Jurcys, Paul and Kono, Toshiyuki, Deciding Who Decides in Conflict of Laws: An Institutional Perspective (June 8, 2014). Available at SSRN: https://ssrn.com/abstract=2447373 or http://dx.doi.org/10.2139/ssrn.2447373

Paul Jurcys (Contact Author)

Prifina ( email )

1 Market Street
San Francisco, CA California 94105
United States

Vilnius University - Faculty of Law ( email )

Saulėtekio ave. 9, building I
Vilnius, LT-10222
Lithuania

Toshiyuki Kono

Kyushu University - Graduate School of Law ( email )

6-19-1 Hakozaki,
Fukuoka
Japan

HOME PAGE: http://www.law.kyushu-u.ac.jp/programsinenglish/

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