At the beginning of the 21st Century, conflict-of-laws theory lies in tatters. The determination of the applicable law could hardly be more disputed and insecure. At the same time, globalization requires a strong basis on which legal systems can be coordinated. It is therefore high time to reconsider the theory of choice of law. In my analysis, I have focused on the three major players in the conflicts dilemma: individuals, states, and courts. I have tried to show how their roles have changed or should change in order to allow for more justice and global coordination. I have started out with the individuals because they suffer most from the application of a certain law. Today, it is recognized in almost all legal systems that individual parties can choose the law governing their disputes. But this principle does not sit very well with traditional theory of conflicts, which is built on connections to states and state authority. That is why I have tried to give a theoretical justification for party autonomy. Second, I have turned to the states because the reason we have conflicts is the existence of different countries with different legal systems. States claim application for their law either because a case arises in their territory, or because it is connected to their nationals, or because it touches upon their interest. In the modern world, though, it becomes difficult to establish these kinds of connections as social relations are increasingly transcending state borders. In my second article, I have shown that the law of the states has reacted by "de-bordering" itself. The final actor I have examined is the courts. One of the main problems of conflict of laws, in my eyes, is that courts consider themselves as organs of a certain state. I argue in my third article that this is a misconception and that their main preoccupation should be to render a just decision. If that would be accepted, they could very well turn out to be the key organizers of a more just global legal order.
| Identifer | oai:union.ndltd.org:columbia.edu/oai:academiccommons.columbia.edu:10.7916/D87H1RJ1 |
| Date | January 2011 |
| Creators | Lehmann, Matthias |
| Source Sets | Columbia University |
| Language | English |
| Detected Language | English |
| Type | Theses |
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