Article by Horatia Muir Watt
The real methodological revolution in European conflict of laws today is linked to the emergence of a fundamental-rights approach to cross-border situations, which aims at protecting personal status and relationships from the adverse effects of heightened international mobility. This approach entails a neo-unilateralist turn, whereby the forum's choice-of-law rules are set aside whenever they interfere with the continuity of an effective cross-border relationship. To a large extent, the traditional methods and policies encountered in the field of mutual recognition of foreign judgments are extending to situations created independently of any judicial intervention but which have generated legitimate individual expectations. The case law of the various European and national courts frequently justifies this new methodology by reference to the principle of nondiscrimination, whether within the context of Community law or on the basis of the European Convention of Human Rights. However, such a justification is highly debatable. Rather, the recent methodological turn appears to be mandated by the ideological foundations of the new European legal order, which are grounded in the recognition and protection of personal identity.
About the Author
Horatia Muir Watt. Professor, University of Paris I (Panthéon-Sorbonne); Deputy Director, UMR Droit Comparé de Paris (Center of Comparative Law). Doctorate 1985, Paris II; Agrégation 1986.
Citation
82 Tul. L. Rev. 1983 (2008)