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
A Concise Guide to the Rule of Law
To be published as a Chapter in "Florence Workshop on The Rule of Law," edited by Neil Walker and Gianluigi Palombella, Hart Publishing Company, forthcoming 2008. This paper provides a brief overview of core aspects of the rule of law. It is by no means exhaustive on the subject and does not resolve any of the hard questions. Rather, it is a pragmatic guide to the basic issues, oriented to the circumstances and concerns of societies that are working to develop the rule of law (although the discussion applies broadly to all societies and legal systems). The topics covered are: Definition, Functions, Benefits, Elements. Several key points are made about each subject, followed by comments on limitations or concerns. The overview closes with a few reasons to be wary of the rule of law. This paper should be useful for non-theorists interested in learning about the rule of law, and may serve as supplemental reading material for classes on government or on law and development.
The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: The European Private International Law Tradition Continued - Introductory Observations, Scope, System, and General Rules
The establishment of Regulation No 864/2007 on the Law Applicable to Non-Contractual Obligations (Rome II) is a landmark for European Private International Law. The regulation of torts in the European Union has a history of forty years, starting with the preparation of the Rome Convention in 1967. As was the case with its thorny counterpart, the Regulation on the Law Applicable to Contractual Obligations (Rome I), negotiations have been difficult. It is also for the first time, that the efforts to develop European conflict-of-law rules and the negotiations have attracted such serious cross-Atlantic attention, especially from scholars in the United States (US). Not only have Americans and other non-Europeans bothered to publish on the (draft) Rome II Regulation, they have also interacted in the Brussels negotiations, at the invitation of the European Parliament's rapporteur for Rome II. This contribution provides an outline of the background (section 2), scope (section 3), and system of the Regulation (section 4) and an analysis of the two general conflict rules laid down in Article 4 (section 5) and 14 (section 6). The question is whether in methodology and content this Regulation stands in the European tradition, or whether it takes a new direction. Another question is whether it offers a predictable but at the same time a sufficiently flexible system of conflict rules. The Rome II Regulation proves that it is difficult to reach a satisfactory compromise between legal certainty and flexibility in order to do justice in an individual case, while fulfilling the law and economics criteria of simple and predictable rules. The Regulation provides many special rules as well as general and special exceptions that are occasionally ambiguous and make the outcome sometimes unpredictable. Nevertheless, it is concluded that the Rome II Regulation in spite of its flaws, is an acceptable instrument that furthers the harmonization of conflict of laws in Europe.