The New European Choice-of-Law Revolution
The most up-to-date version of this piece can be found in the Duke Law Scholarship
82 Tulane Law Review 1607 (2008)
Conflict of laws in Europe was long viewed by outsiders as formalist, antiquated, and uninteresting. Now that the European Union has become more active in the field, things are changing, but most view these changes as a mere gradual evolution. This is untrue. Actually, and fascinatingly, we are observing a real European conflicts revolution—in importance, radicalness, and irreversibility comparable to the twentieth-century American conflicts revolution.
European developments go beyond the federalization of choice-of-law rules in EU regulations. In addition, EU choice of law is being constitutionalized, in particular through the principles of mutual recognition and the country-of-origin principle, along with the influence from nondiscrimination, EU citizenship, and EU fundamental rights. Together, these developments create a methodological pluralization that leads to a bifurcation of intra-Community and external conflicts and to a conflict between two methods, one developed on the basis of classical choice of law, the other based on specific EU-law reasoning.
These developments constitute a genuine choice-of-law revolution. Classical European choice of law was characterized by three principles: privatization, nationalization, and domestic internationalism. These are replaced by three new principles: regulation, Europeanization, and mediatization. This revolution is different from that in the United States, but it nonetheless holds important lessons.
In the course of the argument, this Article introduces the other contributions to this issue. These articles were first delivered at a Symposium, jointly organized by the Duke Law Center for International and Comparative Law and the Tulane Law Review, and titled “The New European Choice-of-Law Revolution—Lessons for the United States?”
Date of Authorship for this Version
European Union, choice-of-law, country-of-origin, mutual recognition
Michaels, Ralf, "The New European Choice-of-Law Revolution" (2008). Duke Law School Faculty Scholarship Series. Paper 151.