Revival of Rabel’s Trans-National Characterization for Rules of Conflict? Some Answers in a European Convention
December 6, 2016
During the 30s, Ernst Rabel, a great German scholar, formulated a program persuading national judges to use comparison in determining a trans-national (autonomous) characterizations of the rules of conflict of laws. In the years to come nothing was achieved of his ambitious approach in a world where the practice of national judges is still dominated by characterization according to ‘lex fori.’
However, relatively recent evolution, in relation to Convention of Brussels 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 in trans-national/autonomous characterization of terms of Convention of Brussels by the European Court of Justice. Based on significant decisions within a 40 years period, this analysis uncovers the reasons, the features and the limits of such a powerful interpretative instrument. Eventually this instrument might be used out of international settings, for example in interpreting more recent EU Regulations (such as Brussels 1, Brussels 2, Brussels 3 or Rome 1, Rome 2 and Rome 3).
Number of Pages in PDF File: 33
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
Date posted: December 7, 2016 ; Last revised: February 15, 2017