Table Of ContentTHE INTEREST APPROACH TO CHOICE OF LA W
THE INTEREST APPROACH TO
CHOICE OF LA W
WITH SPECIAL REFERENCE TO TORT PROBLEMS
by
AMOS SHAPIRA
M. Jur. (Jerusalem), M.C.L. (Columbia), J.S.D. (Yale)
Faculty 0/ Law, Tel-Aviv University
Member 0/ the Israel Bar
•
SPRINGER-SCIENCE+BUSINESS MEDIA, B.V.
ISBN 978-94-017-0019-1 ISBN 978-94-015-7549-2 (eBook)
DOI 10.1007/978-94-015-7549-2
© 1970 by Springer Science+Business Media Dordrecht
Originally published by Martinus Nijholl. The Hague. Netherlands in 1970
All rights reserved, including the right to trans/ate or 10
reproduce this book or parts thereo! in any!orm
TOMYFAMILY
T ABLE OF CONTENTS
PREFACE XIII
INTRODUCTION 1
CHAPTER I. THE TRADlTIONAL ApPRoAcH TO CHOlCE OF LAW 8
A. The General Theory 8
1. Jurisprudential underpinnings: Territorial Sovereignty, Legislative
Jurisdiction and Vested Rights 9
2 Internationalism and Universalism 10
3. System-pointing rules - the systematics of broad categories and
"connecting factors" 11
4. Asserted policy bases - uniformity of result and ease of application 12
B. The Gap between Judicial Doing and Reasoning - "Escape Devices" 15
C. Critical Evaluation of the Traditional Approach 20
D. The Traditional Tort Choice-of-Law Rules 24
1. In the United States 24
2. In England 26
3. In the Continent of Europe and other Countries 28
CHAPTER H. THREE PRELIMINARY CLARIFICATIONS: TRANSNATlONAL
VERSUS INTERSTATE CONFLICTS, THE LEX FORI THRESHOLD AND
FOREIGN LAW AS FACTUAL DATUM 34
A. Transnational Versus Interstate Conflicts 34
1. The transnationaI-interstate dichotomy 34
a. The impact of constitutional mandates 34
b. The factor of mutuality, reciprocity and sense of unity 35
c. The scope of substantive diversity among different laws 36
d. The practical possibility of forum shopping 38
e. The feasibility of substantive law unification 39
f. The frequency and subject-matter of conflict-of-Iaws litigation 40
2. Seperate methodologicaI treatment of interstate and transnational
conflicts? 41
x
T ABLE OF CONTENTS
B. The Lex Fori Threshold 44
1. Introductory note 44
2. The Case against a lex fori threshold - "forum shopping" 45
a. Facts and fancies of the forum shopping phenomenon 45
b. The correctives of jurisdictional reform and forum non conveniens 46
3. The case for a lex fori threshold 49
a. Simplicity, economy and efficiency 51
b. Justice and reason under law 51
c. Jurisprudential premise - presumption as to the prima facie
functional reach of domestic legal rules 52
4. Some specific features of a lex fori threshold in cases involving foreign
elements 53
a. "Sophisticated" lex fori 53
b. Lex fori as sole candidate or last resort 54
C. Foreign Law as Factual Datum 56
CHAPTER IH. THE CONCEPT OF PUBLIC AND PRIVATE INTERESTS IN THE
CHOICE-OF-LAW - PROCESS - PERSPECTIVES AND VALUES 61
A. The Concept of Public Interests 61
1. Fundamental Jurisprudential underpinnings 61
2. The "interest" trend in choice of law - abrief historical sketch 67
3. Public interests - a comprehensive view 71
B. The Concept of Private Interests 75
1. The "justice in the particular case" dilemma 75
2. The principle of rational connection between parties and laws 78
a. The "submission and consent" fallacy 79
b. The "foreseeability" and "vindication of justified expectations"
desideratum 80
c. The "equitable responsibility to ascertain foreign law" consider-
ation 87
d. The "reasonable reliance" criterion 88
e. The "fair notice" rationale 90
3. The assessment of private interests as a coherent part of the process
of interest analysis 94
C. An Interest-based Approach - The Values of Judicial Creativity, Con
cretization and Rationality, "Domestication" of the Choice Process and
Functionalism in lieu of Territorialism 97
1. Judicial creativity 97
2. Rationality in terms of concrete rules and consequences 100
3. "Domestication" of the choice of law process 102
4. Functionalism in lieu of territorialism 105
CHAPTER IV. PUBLIC INTERESTS PECULIAR TO CONFLICTS CONTEXTS:
TRANSNATIONAL CONCERNS 112
A. The Concept of Transnational Concems 112
B. Transnational Concems in Reciprocal Accommodation of Public Interests
and Uniform Treatment of Distinctive Problem-Areas 119
1. Reciprocal accommodation of public interests 120
a. Moderate delineation of public interests 120
b. Harmonization of compatible public interests 121
c. Facilitation of commonly desired transnational activity 122
d. Mutual assistance in the handling of foreign law 123
T ABLE OF CONTENTS XI
2. Uniform treatment of distinctive problem-areas 125
a. The traditional desiderata of predictability and uniformity-
fancies and facts 125
b. Uniformity of results - a discriminatory approach 128
CHAPTER V. THE PROCESS OF INTEREST ANALYSIS-ASCERTAINMENT OF
RELEVANT INTERESTS 134
A. Ordinary and Peculiar Aspects of the Interpretive Function 134
B. Factors and Guidelines in the Ascertainment of Relevant Interests 142
1. Initial identification of potentially concerned jurisdictions 142
2. Enlightenment in the ascertainment of relevant interests 142
3. The putative interest dilemma 145
4. The realistic and timely coincidence of rule-supporting purposes and
relevant connecting-factors 150
5. The pitfall of eclectic combination of interests 153
C. Practical Complexities in the Ascertainment of Relevant Interests 155
1. The general problem 155
2. Some mitigating considerations 158
3. The procedural aspects of foreign law ascertainment 159
CHAPTER VI. THE PROCESS OF INTEREST ANALYSIS-ELIMINATION AND
RESOLUTION OF CONFLICTS OF INTERESTS 165
A. Elimination of Apparent-but-not-reaI Conflicts of Interests 165
1. The concept of ilIusory, false and avoidable conflicts 165
2. The substance-procedure dichotomy revisited 170
B. Resolution of True Conflicts of Interests 175
1. The general dilemma 175
2. The invariable recourse to the lex fori solution 177
3. Rational guiding considerations - the respective strength and merits
of conflicting interests 185
a. Choice in terms of the relative strength of conflicting interests 186
b. Choice in terms of the relative merits of conflicting interests 190
C. Recourse to the Lex Fori as a Last Resort in Conflicts Adjudication 197
CHAPTER VII. THE PROSPECTS OF STANDARDIZATION IN THE PROCESS OF
INTEREST ANALYSIS 202
A. New Choice-of-Law Standards - Fancies and Facts 202
1. The illusions of Ehrenzweig's "true" rules 205
2. The ambiguities of the "most significant relationship" formula of the
Restatement Second 208
3. The shortcomings of Cavers' "principles of preference" 218
B. Avenues of Standardization: Accumulation of Interest-Analyses Data,
Judicial and Legislative Scope-Delimitation of Legal Prescriptions, and
International Legislation in Distinctive Problem-Areas 224
1. Accumulation of interest-analyses data 224
2. Judicial and legislative scope-delimitation of legal prescriptions 226
3. Internationallegislation in distinctive problem-areas 235
ApPENDIX. AN EXERCISE IN INTEREST ANALYSIS 241
SELECTED BIBLIOGRAPHY 268
GENERAL INDEX 271
PREFACE
This book is based on a doctoral thesis submitted to Yale University Law
School in 1968. I wish to acknowledge my deepest gratitude to my super
visor in the writing of the thesis, Professor Ronald M. Dworkin, whose in
sights and criticism have conspicuously contributed to the present work.
Time and again I have been inspired by the ideas expressed by hirn both in
personal discussions and in his Conflict of Laws and Jurisprudence courses.
It has been my privilege also to have had Professors Leon S. Lipson and
Guido Calabresi as supervisors. I have derived great benefit from their sug
gestions. A sincerely feIt appreciation is expressed to all three persons.
A special debt of gratitude is owing to the Yale Law School for the gener
ous financial support extended to me. I also wish to record my indebtedness
to the Hebrew University of Jerusalem and to Tel-Aviv University for their
financial assistance.
I am extremely grateful to Mr. Michael Reiss, '68 Yale Law School for
his significant editorial assistance. Thanks are also due to my wife Ettie for
invaluable help and encouragement. Finally, I wish to thank the publishers
for their courtesy and cooperation.
A.S.
Tel-Aviv
January, 1970
INTRODUCTION
Courts in the several jurisdictions of the world community regularly handle
legal controversies entailing foreign elements, that is, controversies which
are not wholly domestic in all their aspects. Such mixed cases confront the
adjudicating tribunal with a dilemma unknown in purely domestic in
stances: which particular legal system, out of all "conflicting" or "com
peting" or "connected" or "interested" systems, ought to control the dispute
and determine its outcome? What law should the forum choose to apply in
deciding the various issues at bar? A choice-of-Iaw problem could arise
whenever there is a fair possibility that the forum will consider foreign law
relevant for the disposition of a given controversy.l Controversies of this
kind, where the law of more than one legal system is potentially pertinent,
present either apparent or real conflict-of-Iaws situations.
The complexity of and need for choice-of-law determinations derive from
the very nature of a territorially divided, nationally organized world com
munity. The political structure of the world in which we live still builds on
separate national units, the enduring aspirations for "one world" and "inter
national goverment" notwithstanding. Despite persisting attem.pts at inter
national unification of laws, different legal orders espouse essentially differ
ent social policies or principles of justice and provide different mechanisms
for their implementation. Therefore, when human affairs cut across national
frontiers and implicate varied schemes of legal prescription, conflicts of
laws become inevitable and choice-of-Iaw decisions indispensable.
Choice-of-Iaw problems are no rare phenomenon in a world of ever
shrinking distances and ever-expanding travel and trade. Activities and
relationships stimulated by present-day social and business mobility are
frequently associated with more than one national community. They are
"transnational" by virtue of the identity of the participants or the location
of pertin~nt occurrences. Such transnational affairs are of infinite variety.
1 Currie, The Disinterested Third State, 28 LAW & CONTEMP. PROB. 754, 756 (1963).
2 INTRODUCTION
They extend to all spheres of human endeavor and touch upon political
concerns, socio-economic policies, and moral commitments in different juris
dictions. They call into playa multitude of relevant interests, public (nation
al and transnational) as weIl as private (individual expectations and re
liances). They may have direct or indirect, immediate or remote, temporary
or lasting, short-range or long-range effects on these interests. A consci
entious decision maker called upon to pass judgment on such affairs must
take account of all the interests involved, evaluate them appropriately, and
reach a decision which is as rational and fair as possible. No wonder, then,
that choice of law is " ... one of the most hazardous of subjects ..." 2
Conflict of laws is still considered by some to be a young branch of the
law, although in fact it has been a subject of juridical interest for almost
seven centuries.3 There seems to exist a close affinity between one's general
jurisprudential view as to the nature and function of law and one's meth
odological preferences for the solution of conflicts problems. This affinity
does much to explain the drastic change in conflict-of-laws, particularly
choice-of-law, thinking in the United States, and to some extent also on the
other side of the Atlantic, in the last few decades. This change is symptomatic
of a fundamental change in general attitudes towards the law which charac
terizes contemporary American jurisprudence. The focus of attention is
drifting away from doctrinal purity, conceptual symmetry and logical con
sistency in legal analysis. Members of the legal profession, including judges
and academicians, are ever more concemed with social engineering, with
pressing community problems, with concrete policies and interests, with the
law in action. The legal enterprise strives for "substantive" rather than "for
mal" rationality. 4 The proper solution of specific issues, not the pursuit of
abstract doctrines and ideologies, seems now to be the principal goal of the
judicial process. The conventional distinction between "private" and "pub
lic" fields of law becomes blurred. The relation between private rights and
public policy appears clearer than ever before.5 The topical division of law
into separate departments of "contracts," "torts," "property," etc. loses
much of its meaningfulness. Judiciallaw-making is candidly acknowledged
and frequently encouraged.
2 Traynor, Is this Conflict Really Necessary?, 37 TEXAS L. REV. 657 (1959).
3 Nadelmann, Marginal Remarks on the New Trends in American Conflicts Law,
28 LAW & CONTEMP. PROB. 860, 868 (1963).
4 Thus " ... legal problems are solved no longer by an allegedly value-blind derivation
of answers from more or less broadly defined formal concepts, but by the conscious
application and evaluation of social policies and their balancing against each other."
Rheinstein, Book Review, Ehrenzweig, Conflict of Laws, 32 U. CHI. L. REV. 369 (1965).
5 See Katzenbach, Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances
in Interstate and International Law, 65 YALE L. J. 1087, 1089 (1956).
