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

33 Pages Posted: 7 Dec 2016 Last revised: 3 Mar 2017

Remus Titiriga

INHA University

Date Written: December 6, 2016

Abstract

During the 30s, Ernst Rabel, a great German scholar, formulated a program to persuade national judges in using comparison to determine transnational (autonomous) characterizations for rules of conflict of laws.

In the following years nothing was achieved of this ambitious approach, in a world where the practice of national judges was still dominated by characterization according to ‘lex fori’.
However, a relatively recent evolution, in relation to Convention of Brussels I about conflicts of jurisdiction in Europe, have reactivated the program of Rabel, although within a different, international setting.

The paper explores in a first, historical part, the significance and the articulations of the original program formulated by Rabel.

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

Eventually, this instrument might be used outside of international settings, for example in interpreting more recent EU Regulations (such as Brusels1, Brussels 2, Brussels 3 or Rome I, Rome 2 and Rome3)

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

Suggested Citation

Titiriga, Remus, Revival of Rabel’s Trans-National Characterization for Rules of Conflict? Some Answers in a European Convention (December 6, 2016). Available at SSRN: https://ssrn.com/abstract=2880746 or http://dx.doi.org/10.2139/ssrn.2880746

Remus Titiriga (Contact Author)

INHA University ( email )

100 Inharo, Nam-gu
Incheon, 402-751
Korea, Republic of (South Korea)

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