Conflict of laws Perry Dane Summary The essay focuses on the epic battle(trn chin lch s ) over the

course of the last century(trong qu trnh th k trc) between two very different traditions classical choice of law(s la chn c in ca php lut), articulated most completely (c khp ni hon ton ) by Joseph Beale in the 1930s, and modernist choice of law, which inspired a massive and still controversial revolution in choice of law thinking(v s la chn hin i ca php lut, ly cm hng t mt cuc cch mng ln v vn cn gy tranh ci trong s la chn ca t duy php lut). The essay isolates(tch,c lp) eight distinct jurisprudentially significant premises(gi thuyt,tin ) of classicism, including territorialism, a commitment(s cam kt) to a regime of rules, and a conception of law and legal rights that I have called vestedness. It then discusses the modernist challenges to most, but significantly not all, of those premises. It also emphasize, however, the degree (mc ) to which the eight pillars(tr ct) of the classical tradition are actually conceptually independent, and could, at least in principle, be mixed and matched in various combinations and in the service of very different account of choice of law enterprise. Finally, the essay turns to other debates, both within the classical and modernist traditions separately and transcending the differences between them. The article conflict of laws by Perry Dane examines the problem how juridical cases are solved nowadays in the context of the globalization and the emerging multicultural and multinational relations, both social and business, and the respective(tng ng) conflicts resulting from them. The article takes into consideration both the classical and the modernist subjective points of view and further develops their thesis and looks into depth in the subject. The main focus is set on the conflict that arises when a case is heard in one jurisdiction, but has connections to others. To illustrate this and to prove that there is really a conflict of laws, the author gives us an example in the beginning of the article. It shows us that sometimes the court has to deal with up to four different law systems these of the country of the plaintiff, the defendant, of the place of the event, or this of the court where the case is heard. Despite the difficulties it causes, the conflict of laws creates many opportunities as well. As it is said in the article it forces the law to revel its deepest assumptionsa practical challenge. With these words the author uphold the thesis that the international law deal with the most complicated cases and hence it involves the most profound and in depth interpretation of the law systems. Further in the article, the two main views on the subject of conflict of laws are investigated the classical and the modernist choice of law. The classical choice of law rests on eight pillars.

1. The only sources of legal norms were nation-states and their judicial divisions 2. The choice of law is not a matter of international law, rather it is a law of individual forums which judging the rights of the parties before it. In this sense, it is a collective effort of all the parties involved, in this case the sovereign`s courts, to create rights. 3. The third is said to be the mast jurisprudentially laden pillar by the author and is refferd as vestedness. According to it the choice of law is a second-order process. It decides which law will apply in a given case. The substantive legal rights vested in the basis of real world, primary events and behaviors. Hence the choice of law do not regulates the primary behavior. Different forums have different choice of law regimes and different substantive laws. 4. The fourth pillar is so called territorialism. However, as pointed by the author, this notion could be misleading. Talking about territory is a tricky question and it depends on the point of view. It could be the defined by the citizenship of the parties as well as where the relative event occurred. Hence two types of territorialism emerge person-territorialism and actterritorialism. However, nowadays classical American choice of law sticks to the act-territorialism. 5. Commitment to a regime of rules striving for objective, automatic, simple criteria. It has to contain clear rules. 6. The sixth pillar could be called instantaneity. This is related to the moment which will be taken into consideration as the event that would locate the place and hence which law should govern the relevant right. 7. Effort to frame choice of law rules that were neutral as to substantive outcomes. 8. The independence of choice of law rules from particular assessments of state interests in specific legal rules.

The modernist choice of law is opposing the thesis of the classical one. However, they have some common ground relevant to the first two pillars. Both of them agree on the exclusivity of states and the limited relevance of international or federal law. 1. First, the modernists defer from the classicists opinion about the regime of simple rules. (Pillar 5) 2. The second contradiction between the two schools is about the instantaneity (Pillar 6). Here the modernists search not for a single moment, which will lock everything in place, but rather a set of events over place and time.

3. The next issue that arises arguments between the classicists and modernists is the territorialism (Pillar 4). While the classical choice of law favors the act-territorialism, modernist are more and more shifting to the person-territorialism. Their arguments are based on the concept that people are the subjects that build up the system, not places. However, according to the classicists legal regimes are territory-bounded, so actterritorialism is the more appropriate approach. 4. The next difference is about the state interest in the legal questions (Pillar 8). Modernists say that the choice of law should take them into consideration. Furthermore, a broader topic for discussion emerges about which states would care about the outcome of a case. Due to the fact that even if not involved directly into the case and having no contact with it, a state, however, could have an interest in it. That is why some constraints should be posed to the reach of a states interest. 5. The next difference is about the neutrality as to outcome where modernists are proponents of the outcome-oriented methods, the so called better law approach. (Pillar 7) 6. The last point where the two schools have some controversies is the vestedness (Pillar 3). According to modernists a true conflict exists when both the forum and the other state have a genuine, serious, interest in a case. The modernists argue that when a court is deciding upon a particular case and is engaged in choice of law, it is always applying and enforcing the rights created by its own law and never the foreign ones. However, the court is applying a rule that is similar in scope to that of the other country. Furthermore, the modernists say that when enforcing a legal norm, the effect has to be to advance the policy or substantive moral vision underlying the norm. Questions for modernists Differences between the modernist and classical points of view arise debates, but there are some discussions within the modernist statements as well. According to modernists, the states enact legal norms to benefit favored classes of persons and that the state would only be interested in applying its own law if this action benefit its domiciliary. However, there are cases when neither state has a real interest in applying its law. Here comes the relation to the notion of the game theory and the principles laid in it. In the case of choice of law sometimes tacit cooperation can be the most effective long-term strategy maximizing the self interest of the states. Question for classicists The role of the substantive legal ideas in the context of choice of law is still not clearly expressed by the classicists. Furthermore, there is still vagueness about the usage of foreign law. Finally, the distinction between first-order and secondorder legal processes is still not clear enough.