Article by Luther L. McDougal III
Legislative directives as to the law that should be applied to resolve trans-national choice-of-law controversies have been the exception rather than the rule in both common law and civil law nation-states. Although most nation-states, or their political subdivisions, have scattered statutory or code provisions applicable to a limited number of specific choice-of-law problems, the vast majority of choice-of-law problems have been resolved by application of principles selected or developed by courts. Reliance on the courts to resolve such problems is not only prevalent in common law countries but also in civil law jurisdictions where most choice-of-law controversies are treated as "unprovided-for cases" that are resolved through the application of "customary" or "unwritten" law, or "equity." In recent years, however, a small but steadily increasing number of European nation-states have adopted conflict of laws or private international law codes which include relatively comprehensive coverage of choice of law. This codification trend in Europe may encourage other civil law jurisdictions to adopt a conflict of laws code with choice-of-law provisions. It may also encourage legislatures in common law countries to enact statutes dealing with a wide range of choice-of-law problems. Such legislation is meritorious, however, only if it ensures that decisions will appropriately accommodate all of the various interests at stake in trans-national choice-of-law controversies. The purpose of this article is to analyze three of the most recent codes, the East German, Austrian, and Hungarian, plus the Swiss projet, to ascertain whether their mode of codification should be commended to other states. Their codes are not in the Code civil tradition because they, with rare exception, contain specific rules, rather than general principles.
An initial question presented by the European codification trend is why, after centuries of non-codification of choice of law, is there a sudden clamor to codify choice-of-law rules? The answer varies. Some states sought to achieve certainty, predictability, and uniformity of results in choice-of-law decisions, while others sought to obtain a balance between such objectives and the flexibility demanded by contemporary choice-of-law theories. Even though the primary objectives of the codes may be somewhat variant, two questions emerge. To what extent will the codes produce certainty, predictability, and uniformity of results in choice-of-law decisions? More significantly, will the choice-of-law rules incorporated in these codes produce decisions that appropriately resolve trans-national controversies? Before exploring the answers to these two questions, a brief description of the content of these codes will be presented.
About the Author
Luther L. McDougal III. Professor of Law, Tulane University; B.A. 1959, LL.B. 1962, University of Mississippi; LL.M. 1966, Yale University.
Citation
55 Tul. L. Rev. 114 (1980)