Modern Changes in the Conflict-of-Laws Methodology: The Blending of the Savignian Multilateralism, the American Unilateralism, and the Recognition of Legal Relationships
Modern Changes in the Conflict-of-Laws Methodology: The Blending of the Savignian Multilateralism, the American Unilateralism, and the Recognition of Legal Relationships

Summary/Abstract: Over the centuries, the preference for a conflict-of-laws methodology was subjectto twists and turns. A number of methods coexisted and continue to compete today.First, the unilateralism involves determining the spatial scope of application of either theforum’s own law or foreign law. This is achieved through the use of one-sided choice-of-lawrules or through the functional interpretation of specific substantive provisions. Second,the multilateralism assumes a neutral and territorial localization of the legal situationin question. It seeks to identify the legal system most closely connected to the matter,based on objective connecting factors. The third approach, which is sufficiently distinctfrom the first two to warrant separate analysis, boils down to recognition of legal eventscrystallized under foreign law.The article reviews some of the most important trends and developments in the conflict-of-laws, occurring during the second half of the XX century and the first decades ofthe XXI century, on both sides of the Atlantic Ocean. At the outset, it briefly introducescharacteristics of the multilateral method as understood in Europe and the unilateralism,focusing on its American version. An attempt is made to show how the unilateraland multilateral methods are intertwined in the US conflicts of laws, with a particularattention devoted to the draft of the Restatement (Third) of the Conflict of Laws. The attentionis then transferred back to Europe, putting an emphasis on the expressions ofunilateralism, not only in their classic forms of the public policy exceptions and overridingmandatory rules, but also hybrid instruments which essentially constitute a mixture ofthe multilateral technique and a substantive-result-orientation. The article deals alsowith recognition as a conflicts method, focusing on the recent case law of the Court ofJustice of the European Union, which effectively ignores the conflict-of-laws analysis,because it is guided by a different imperative, namely to safeguard the free movementwithin the Union. The article concludes with a suggestion that — although the methodologicalstarting points and accents undoubtedly differ on either side of the Atlantic— a common feature of contemporary developments in conflict-of-laws theory, both inEurope and the United States, is the blend of unilateral and multilateral approaches tosolving the conflict-of-law problems.A fundamental distinction between European and American approaches, however,lies in the European reluctance to replace the multilateral method with a unilateral one.The prevailing view in Europe remains that unilateral methodologies may be employedonly in exceptional cases, serving as supplementary or corrective mechanisms within thebroader framework of traditional conflict-of-laws system, and only in relation to specificinstitutions or techniques designed to address particular deficiencies. The article posits,nevertheless, that the role of these mechanisms has gained increasing prominencewithin the traditional framework of private international law. Moreover, it is essentialto recognize that they reflect a unilateral methodology grounded in a conceptual premisefundamentally distinct from that of traditional conflict-of-law rules based on neutralconnecting factors. Specifically, this alternative approach centers on delineating thespatial scope of application of a substantive rule — whether domestic or foreign — thatasserts its relevance, without resorting to a multilateral determination of the applicablelaw governing the legal relationship in question.The article also attempts to show how the American Restatement (Second) and thecurrent Draft of the Restatement (Third) represent hybrid constructs that blend the“revolutionary” doctrines of interest analysis with elements that remain rooted in traditional,multilateral choice-of-law rules. The authors argue in this context, that whilethere is no inherent contradiction in combining unilateral and multilateral methodologieswithin a single conflict-of-laws framework, this can satisfactory be done only if the distinctmethodologies are kept separate and understood as having very different premises,with a clear defined role and hierarchy within the system. Both the existing and plannedRestatements fail to achieve clarity in that regard, as often reminded by the Americanconflict scholars themselves.

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