The Choice-Based Perspective of Choice-of-Law
Peari, Sagi, Duke Journal of Comparative & International Law
This Article offers an innovative basis for the choice-of-law question: the Choice-Based Perspective (CBP). The main argument is that there exists an alternative rights-based understanding of choice-of-law to that which is" presently known as the "vested rights" theory. This understanding is based on the legal philosophy of perhaps the greatest expositor of the rights-based concept, Immanuel Kant. In contrast to alternative approaches, CPB insists on a purely private conception of the subject, grounded on an organizing principle of unity of persons' choices. Furthermore, the proposed approach holds much sway in practice, for the normative underpinnings of CBP are already embedded in many traditional and contemporary choice-of-law rules, doctrines, and concepts.
CONTENTS INTRODUCTION I. A FRESH START II. THE THREE FOUNDATIONAL BLOCKS OF CBP A. Parties' Autonomy Principle B. The Doctrine of Constructive Inference 1. Juridical Imposition 2. Juridical Indicators 3. Juridical Presuppositions C. Innate Right Test of Legality III. THE OPERATIONAL FORCE OF CBP: SEVERAL EXAMPLES CONCLUSION APPENDIX
[C]hoice of law was one of the easiest subjects because there was really only one rule for all areas of private law: "You apply the law most substantially connected," he would say with a subtle accent. As a student, I felt that was an unhelpful generalization. On other occasions, when students were troubled by inconsistencies between implications of the established choice of law rule and the outcome of the particular cases, he would observe calmly that the courts routinely manipulated the rules to produce a just result. I found this frustrating: either the decision in question was wrong, or the rule was in need of reformulation, or we had failed to appreciate the consistency between the two. (1)
In the above-quoted passage, contemporary choice-of-law scholar Professor Janet Walker expresses concerns about her former choice-of-law teacher's vision of the subject. This vision seems to be grounded on a problematic general principle and exception. The general principle refers to the somewhat amorphous and highly flexible "most significant relationship principle" ("MSR principle") (2) according to which courts apply the law of the jurisdiction having "most significant relationship" to the parties and the event. The exception seems to refer to some form of better-law approach, condemned no less in choice-of-law literature, (3) according to which courts evaluate the substantive merits of the applied laws. Furthermore, the combination of the general principle and the exception lacks internal coherency and consistency.
However, in this Article I argue that the intuitive understanding of Professor Walker's teacher was right. Drawing from Kantian legal philosophy (4) and several neo-Kantian writings, (5) this Article depicts the main contours of what I have labeled a Choice-Based Perspective ("CBP") on choice-of-law. I argue that CBP provides a truly individual-rights-based understanding of the subject that is so lacking in traditional and contemporary choice-of-law literature. While other accounts have fundamentally grounded their vision on the principle of states' sovereignty, CBP presents a purely private conception of choice-of-law as the union of the choices of two persons.
Furthermore, I argue that CBP is not detached from reality, but in fact reflects it. Despite the popular instrumentalist conception of the choice of law as a tool for promoting states' interests, (6) the normative underpinnings of CBP are already embedded in many traditional and contemporary choice-of-law rules, doctrines and concepts of many jurisdictions: (1) the above-mentioned and vastly popular MSR principle; (7) (2) the universally recognized parties' autonomy principle; (8) (3) the flexible choice-of-law connecting factors or "starting points" that have been established for each of the private law categories; (9) (4) the central concept of "parties' reasonable expectations"; (10) and (5) the inherent reference, in various doctrines, to the substantive merits of the involved laws in extreme cases. …