Private or International? Two Economic Models for Private International Law of Torts

Document Type



The most up-to-date version of this piece can be found in the Duke Law Scholarship


Private international law (choice of law) is generally considered a discipline in dire need of a methodological approach. Can law and economics bring more scientific, objective foundations? This article sheds light on this question, from the example of choice of law in torts.

The first object of this article is to provide an analysis of three particular questions in the private international law of torts - the common domicile exception to lex loci, party autonomy, and cross-border torts - from an economic perspective. This article differs from others insofar as I make arguments on each of these questions not within one but within two economic paradigms, a private law paradigm and an international law paradigm.

This relates to the second object of this article. I want to test the hypothesis that different paradigms lead to different outcomes, that the different results within different economic paradigms are congruent with the different views within traditional doctrinal private international law, and that therefore the debate whether private international law is private or (public) international law, is replicated in the economic analysis of private international law, and. If this is so, it suggests that the choice of one paradigm or another cannot only be justified in passing in a short introduction, as is the case in many economic analyses. Rather, for a robust normative analysis, this choice must be central to an economic analysis.

Date of Authorship for this Version

September 2005