Article by Richard Fentiman
The objectives and methods of the conflicts process were once universally shared, with uniformity of decision the goal. This consensus, much influenced by Savigny, has now dissolved. Of particular significance, the principle of uniformity has lost its preeminence, especially in the United States. Unilateralism, not uniformity, has become the dominant ideology. But developments in Europe compel a reappraisal of this trend. The rapid harmonisation of choice of law in the European Union, evidenced most recently by the Rome I and Rome II Regulations, suggests what a communal, multistate conflicts regime might achieve. This has implications in the United States, where the possibility of federal conflicts rules is much debated. But the most important lessons are not to be learned from the European regulations themselves, so much as from the jurisprudence of the European Court of Justice. A glimpse of how the Court perceives the European conflicts process is already visible in its approach to the Community jurisdiction regime embodied in the Brussels Regulation. The Court has rehabilitated uniformity of decision so as to promote the certainty required by European integration. It has thus committed itself to an instrumental conception of the conflicts process, in which the best result in conflicts terms is subordinate to the higher goal of uniformity, and ultimately to the objective of European union. As this suggests, the wider lessons to be learned from the European experience are ambiguous. The European conflicts regime promises much as a model for uniform choice of law. But it may say less about the choice-of-law process, and more about the local, contingent demands of European integration.
About the Author
Richard Fentiman. Reader in Private International Law, University of Cambridge. B.A. 1977, B.C.L. 1978, University of Oxford.
Citation
82 Tul. L. Rev. 2021 (2008)