A Relations-First Approach to Choice of Law

in R Banu., M. Green & R. Michaels (eds), Philosophical Foundations of Private International Law (Oxford University Press) [Forthcoming]

28 Pages Posted: 21 Mar 2022

See all articles by Toni Marzal

Toni Marzal

University of Glasgow

George Pavlakos

University of Glasgow, School of Law

Date Written: March 10, 2022

Abstract

The question of applicable law remains central in the doctrine and practice of private international law (PIL), raising a host of disagreements around the criteria that govern its determination. Paradoxically, this question is commonly approached through a positivist lens, whilst at the same time being guided by a commitment to individual autonomy. In this paper we propose, against mainstream practice, to frame the issue of applicable law as involving a series of questions about relational morality, which ought to be answered independently of any established legal order, and from a concern for the common good. We will proceed in four parts. First, we will demonstrate that a purely positivist understanding fails to properly account for today’s practice, given its propensity to exclude normative considerations as irrelevant to the determination of legal facts, whilst at the same time resorting to such considerations under the cover of hopelessly circular reasoning – a failure that is particularly manifest in the context of PIL. Second, we will show how current PIL tends to accomplish this operation by smuggling into legal reasoning a pre-institutional notion of individual autonomy, which implicitly guides the determination of applicable law, and is divorced from any considerations of relational morality (as well as from ideals of the common good that are left to the ex-post intervention of institutionalised legal orders). Third, we emphasise the independent value of addressing the question of legal relations in pre-institutional terms and propose a fresh way of understanding the legality of such relations among private parties, on the basis of a revised reading of Savigny and Kantian right, as key to the determination of the applicable law. Finally, we explore the downstream implications of our relations-first approach, by considering the topical question of applicable law to claims against parent/buyer companies for the harm caused by their subsidiaries/providers overseas.

Keywords: Private International law, conflict of laws, choice of law, legal relations, jurisprudence, positivism, natural law, Savigny, Kant, multinationals

JEL Classification: K10, K33, K39, K40

Suggested Citation

Marzal, Toni and Pavlakos, George, A Relations-First Approach to Choice of Law (March 10, 2022). in R Banu., M. Green & R. Michaels (eds), Philosophical Foundations of Private International Law (Oxford University Press) [Forthcoming], Available at SSRN: https://ssrn.com/abstract=4054663 or http://dx.doi.org/10.2139/ssrn.4054663

Toni Marzal (Contact Author)

University of Glasgow

School of Law
5-10 The Square
Glasgow, Scotland G12 8QQ
United Kingdom

George Pavlakos

University of Glasgow, School of Law ( email )

Stair Building
5 - 8 The Square
Glasgow, Scotland G12 8QQ
United Kingdom

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