Absolute Conflicts of Law

Abstract

This Article coins the term “absolute conflicts of law” to describe situations of overlapping laws from different states that contain simultaneous contradictory commands. It argues that absolute conflicts are a unique legal phenomenon in need of a unique doctrine. The Article extensively explores what absolute conflicts are, how they qualitatively differ from other doctrines like true conflicts of law, act of state, and comity, and classifies absolute conflicts’ myriad doctrinal manifestations through a taxonomy that categorizes absolute conflicts as procedural, substantive, mixed, horizontal, and vertical.

The Article then proposes solutions to absolute conflicts that center on the rule of law and fairness to parties — solutions that are in methodological tension with prevailing tests that preference largely if not exclusively state interests. The fairness test the Article advances pulls from considerations courts have been quietly developing over the past few decades and reorients absolute conflict analysis around these considerations. It concludes by showing that a fairness test generates better outcomes for parties, states, and the international legal system generally, not only by better conforming to the rule of law but also by better facilitating transnational activity beneficent to overall welfare.

Keywords: conflict of laws, jurisdiction, foreign sovereign compulsion