American vs. European Private International Law – the Case for a Model Conflict of Laws Act (MCLA)

Abstract

'Judges make decisions based on unarticulated intuition in fields other than choice of law, but in no other field do they seem quite so comfortable about it'. This paper makes the case for a Model Conflict of Laws Act. An analysis of conflicts cases in US courts suggests that, even though there is a wealth of problems, a legal system to which courts, litigants and business people can turn to for their solution is lacking. Such a situation calls for legislative intervention that will establish a systematic approach to this subject. Accordingly, the paper addresses the characteristics of modern American conflict of laws and its hallmark – the ‘governmental interest analysis’ approach; the Second Restatement which has been the most widely adopted approach to this subject and its application in practice, evaluated also from a comparative, European perspective. Finally, it makes the case for a Model Conflict of Laws Act.

Keywords: US conflict of laws, European private international law, choice of law, comparative law

JEL Classification: K19