Reviving the "Public Law Taboo" in International Conflict of Laws
Posted: 19 Jan 2016
Date Written: March 1999
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: Suggested Citation