Reviving the "Public Law Taboo" in International Conflict of Laws

Posted: 19 Jan 2016

See all articles by Philip McConnaughay

Philip McConnaughay

Peking University School of Transnational Law

Date Written: March 1999

Abstract

This article was not posted to SSRN when originally published. It explores the extension of conflict of laws analysis in international transactions to questions concerning the jurisdictional reach of public law/mandatory law. The underlying assumption of the extension is that conflict of laws rules enhance the predictability of cross-border transactions by identifying a single national regulatory regime for any given international transaction or issue. The article suggests that this assumption is belied by the ex post and inexact nature of the various interest balancing tests used for selecting a single applicable law. Nonetheless, the article acknowledges the definitional challenges that led to a virtual collapse of the public law-private law distinction in conflict of laws analysis, and suggests that the notion of mandatory law would be a more useful guide for resurrecting a "public law taboo" in international conflict of laws analysis.

Keywords: conflict of laws, international conflict of laws, international law, public law, private law, mandatory law, extraterritoriality, international business transactions, Hartford Fire

Suggested Citation

McConnaughay, Philip J., Reviving the "Public Law Taboo" in International Conflict of Laws (March 1999). Stanford Journal of International Law Vol. 35, No. 2, Available at SSRN: https://ssrn.com/abstract=2717347

Philip J. McConnaughay (Contact Author)

Peking University School of Transnational Law ( email )

University Town
Xili Nanshan District
Shenzhen, Guangdong 518055
China

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