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The Conflicts Restatement and the World

6 Pages Posted: 8 Oct 2016 Last revised: 25 Oct 2016

Ralf Michaels

Duke University School of Law

Date Written: October 5, 2016

Abstract

Some sixteen years ago, on the occasion one of many symposia on the possibility of a new Restatement on Conflict of Laws to replace the much-derided Second Restatement, Mathias Reimann suggested that a new Restatement should focus on the requirements of what he called “the international age.” Conflict of laws is increasingly international, he pointed out. This remains true today — just recall that three of the four recent U.S. Supreme Court decisions on personal jurisdiction concerned international conflicts. A new Restatement must take that into account. Reimann formulated three very sensible wishes for drafters of a new Restatement: they should consider every rule and principle they formulate with international disputes in mind; they should work comparatively; and they should include foreign advisers.

Now that a Third Restatement is underway, we can see that the third of Reimann’s wishes, the one for foreign advisors, has been ignored completely by the American Law Institute (ALI). Not a single member of the Advisers group is situated outside the United States (though some have a foreign educational background). Within the (self-selected) members consultative group, only four scholars are based abroad. This is in sharp contrast to the Foreign Relations Restatement, which can rely on an international advisory panel with twenty-one members from all around the world. It is to be feared, therefore, that Reimann’s first two wishes also can be fulfilled only incompletely — even though the current draft displays in some sections ample comparative and international materials.

In what follows, I address some general themes in this regard, to supplement Reimann’s proposals. I address why the rest of the world matters for a Conflicts Restatement. I discuss challenges for the current draft’s method, in view of the subject’s internationalization. I mention some concrete areas in which an internationalist perspective could be instructive. And I make two concrete proposals for how to address internationalization in the Restatement.

Suggested Citation

Michaels, Ralf, The Conflicts Restatement and the World (October 5, 2016). AJIL Unbound, Vol. 110, p. 155 (2016); Duke Law School Public Law & Legal Theory Series No. 2016-51. Available at SSRN: https://ssrn.com/abstract=2848965

Ralf Michaels (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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