Revival of Rabel’s Trans-National Characterization for Rules of Conflict? Some Answers in a European Convention

Abstract

In the 1930s, Ernst Rabel formulated a program for comparing trans-national (autonomous) characterizations of the conflict of laws. In the following years his ambitious approach had little influence in a world where the practice of national judges was, and still is, characterized by ‘lex fori.’

However, the Convention of Brussels I represents a relatively recent evolution regarding conflicts of jurisdiction in Europe and has reinvigorated Rabel’s program, although within a different, international setting.

The paper first explores the historical significance and articulations of Rabel’s original program.

The second part focuses on a comparison used in trans-national/autonomous characterization of Convention of Brussels I by the European Court of Justice. Based on significant decisions within a 40-year period, this analysis uncovers the reasons, features, and limits of such a powerful interpretative instrument.

Eventually, this instrument might be used outside of international settings, for example in interpreting more recent EU Regulations (such as Brussels I, Brussels II, and Brussels III or Rome I, Rome II, and Rome III).

Keywords: Ernst Rabel, Conflicts of Characterization, International Private Law, Conflict of Laws, Conflict of Jurisdiction, Autonomous Characterization, Comparison, Convention of Brussels I, European Court of Justice, Comparison as a Method of Interpretation