Conflict of Laws in the Era of Globalization

Abstract

The purpose of this paper is to analyze recent academic works on conflict of laws which try to respond to the challenges that have been brought about by the recent advent of globalization. It also examines their significances and the problems they might face from the perspective of the starting points chosen by their authors.

As the globalization of the economy and society is developing, non-state actors are creating their own norms and claiming their rights in the transnational sphere. Due to the increase of those non-state norms, conflict of norms in transnational situations has dramatically changed. Individuals may also raise claims for damages against states whose government, for example, ordered them to be tortured, on the ground of violations of their human rights. These phenomena have brought challenges to conflict of laws, which is based on the state-centered assumption that only states can create law and on the public/private distinction and only deals with private legal relations.

This paper, first, points out common features of these new approaches, including a renewed interest in the doctrine and conceptual frameworks offered by conflict of laws scholarship, now retooled for global governance purposes, a universalist approach, a functional approach, as well as a procedure-based approach. In the following, the paper reflects, in particular, on the following issues: why and how should conflict of laws play a role in global governance? What are the promises, but also the risks of endorsing a universalist approach in contrast to a, say, nationalist approach? In the context of a distinct renewal of legal pluralism scholarship, the following questions have more and moved towards the centre even of conflict of laws scholarship. These questions are: Which norms should conflict of laws consider as “law”? How should conflict of laws strike a balance between predictability and flexibility? And, who should apply conflict of laws?

The author argues that, although there remain quite a few issues to be examined, conflict of laws should transform itself to contribute to the continuing theoretization of transnational (legal) ordering and to provide a model for coordination among different norms.

Keywords: Globalization, conflict of laws, global governance