Flexible Choice-of-Law Rules: Panacea or Oxymoron?
Flexibility is not an acknowledged legal concept, however, and there is no common understanding what fl exibility really means. In fact, the term “fl exibility” is hardly ever defi ned, it is not used uniformly and it may consequently carry rather different meanings depending on the context.2 Furthermore, the doctrinal viability of fl exibility normally remains unexplained. I have previously discussed related general aspects in an article which was published in 2011.3 Based on feedback which I have received in the meantime and further research, this article refi nes my conclusions and – more importantly – explores the signifi cance of fl exibility in the choice-of-law context. To set the scene the fi rst section provides a brief introduction to the potential meanings of “fl exibility” and how this term is used in the legal discourse.4
The Verdict of Quiescent Years: Mr. Hill and the Conflict of Laws
" ROFEsSOR ALFRED HILL recently weighed some ideas about conflict of laws |--advanced by this writer and found them wanting.1 His critique seems to I. require an answer, though I approach the task with some reluctance. I do not relish the defensive attitude that is inevitable in responses to criticism; I do not care for the excessive use of the first person singular that is unavoidable in such discourse except by resort to more distasteful alternatives. Moreover, in this instance I lack spirit for the kind of thrust and parry that sometimes characterizes such professorial encounters. I have no zeal to mount my typewriter and charge into the fray. The truth is that I am delighted that so competent a scholar as Professor Hill has taken note of what I have had to say, and has taken the trouble to articulate and publish his disagreement. In his negative reaction I am sure he is by no means alone, but others have, for the most part, been content simply to disagree and let it go at that. I welcome Mr. Hill's critical analysis; it is better to die by the sword than to be ignored into limbo.2 Mr. Hill's analysis is responsible, informed, and fair. His discussion is free from personalities in the invidious sense. He very courteously gave me a copy of the manuscript prior to publication; not only so, but we spent a full day discussing it together, with the result that some misunderstandings were clarified and (I believe) he modified his original reactions to some extent. It is perfectly clear that he is interested in sound legal scholarship rather than in scoring points in an academic fencing match. I hope that in this response I can maintain the same level of objective discussion. A prefatory word about my role as a conflict-of-laws pundit, as I conceive it: People doubtless write law-review articles for a variety of reasons. I do so, primarily, as a means of working through problems that arise in the teaching
Freedom To Choose The Applicable Law In Tort – Articles 14 And 4(3)Of The Rome II Regulation
This chapter looks at the role Article 14 of the Rome II Regulation may play in practice. Since the late 1970s, party autonomy has occupied an ever increasing place in the statutory provisions on European conflict-of-law rules in tort. Practically all modern European statutes on private international law (PIL) that have expressly addressed this issue allow the parties to choose the applicable law in tort to a certain extent. By admitting the choice of law not only ex post but, under certain conditions, also ex ante , Article 14 provides for a modern approach, centring on the parties freedom to choose. The task for the courts and academics is to establish a coherent relationship between the rule on party autonomy and the rule on rattachement accessoire , i. e. the rule that provides for the application of the same law for contractual and extra-contractual obligations, Article 4(3). Keywords: European conflict-of-law rules; extra-contractual obligations; private international law (PIL); Rome II Regulation