Conflict of Laws – A Comparative Approach – Text and Cases (Edward Elgar, 2nd ed 2022), by Gilles Cuniberti

This book is the second edition of a casebook which aims at being a teaching tool for a class of comparative private international law (otherwise known as conflict of laws). While the main focus of this post will be on the comparative dimension of the project, it is important to underscore that the book does not aim in any way to be a treatise. The audience of the book is primarily students, and it was with them in mind rather than colleagues or scholars that it was written. For the same reason, the size of the book was kept reasonable so that its price would not skyrocket and make it unaffordable for its audience (except perhaps in U.S. law schools).

Why teach private international law from a comparative perspective? The goal is to prepare students for practicing law in an international environment. The personal experience of the author leads him to believe that lawyers should be aware of the rules applicable not only in the jurisdiction where they practice, but also in other jurisdictions. One reason is that they should be aware of the differences in order to design the most appropriate strategies for their client. A lawyer advising her client to sue in one jurisdiction should immediately consider the enforceability of the resulting judgment in the country where the defendant might have assets. Another reason is that lawyers should be able to communicate effectively with their foreign clients, which requires an understanding of the differences between the law of the forum and the law of the jurisdiction of origin of their client. A continental lawyer should know that the international jurisdiction of English courts is based on service, and they should be able to explain to an English client or lawyer that the distinction between service within or without the jurisdiction, which is critical in English private international law, is irrelevant in continental Europe.

These ideas have led a number of law schools in Europe (Netherlands, Luxembourg) and the world (Quebec, Japan) to establish programs of transnational legal education, where some or all courses are taught from a comparative perspective. This book was written as a teaching tool for the class of conflict of laws that the author teaches in the transnational bachelor in law at the university of Luxembourg, and before, for classes of comparative conflict of laws that he taught at the National University of Singapore. The book was primarily designed for courses with an international audience (typically taught in English in countries where it is not the local language). It is hoped, however, that teachers convinced about the advantages of comparative legal education, but teaching to a national audience, could also use the book, maybe supplementing it with local sources.

Identifying the jurisdictions to be compared

As for any work of comparative law, it was necessary to choose the jurisdictions to be compared. Initially, the project was to write a casebook focusing on European jurisdictions. The only reason was that the book was to be published in the series of the Ius Commune Casebooks for the Common Law of Europe, that readers of this blog will know very well. However, it appeared quickly that this project raised two major issues. The first is that the laws of the Member States of the European Union (including England at the time) was largely uniform in the field of private international law. A large part of the book would thus have offered a treatment of EU private international law with no comparative dimension. The second issue was even more troubling. In the field of choice of law (i.e. identification of the applicable law), most countries in the world share the same fundamental approach (conflict scholars would say methodology). The only exception is the United States, where a radically different approach was developed in the 1970s (the so-called U.S. choice of law revolution, which resulted in governmental interest analysis). As a consequence, from a theoretical perspective, it did not make much sense to embark on a purely European project.

A different project was then designed, with no particular geographical focus. The issue of the choice of the jurisdictions to be compared became even more acute, however. It was resolved as follows. First, it was decided that a limited number of jurisdictions would be chosen and systematically presented and compared with each other. As already alluded to, in the field of choice of law, the major divide is between the United States and the rest of the world. It was therefore necessary to include the United States. In the field of international civil procedure, and more specifically international jurisdiction, another clear divide exists, but it is rather between the common law and the civil law traditions. The common law tradition has developed sophisticated doctrines to assess the desirability of retaining jurisdiction over international disputes, which posit that courts can be entrusted with significant discretion. In contrast, the civil law tradition has developed mechanical rules which constrain courts much more. As England has developed different jurisdictional doctrines from the United States, it was decided that the book would systematically present the rules and doctrines of the United States, England, and one civil law jurisdiction. The civil law jurisdiction could have been Italy, Germany or Spain, but the author being a French scholar, he chose France.

This is not to say, however, that the law of other jurisdictions necessarily follows one of these three models. Very many rules and doctrines have been adopted in other jurisdictions which are different, and therefore very interesting to compare and oppose to the rules of the three jurisdictions which are the main focus of the book. The choice was made to present those different rules and doctrines on a case-by-case basis. The book includes references and discussions of particular rules of numerous other jurisdictions, including Germany, Italy, Belgium, the Netherlands, Canada, Israel, Tunisia and Egypt.

Finally, the author must concede that he had a hard time deciding how to deal with Chinese and Japanese law. On the one hand, he was acutely aware of the Western focus of his book, and wished to avoid it. On the other hand, he did not feel that his access to the sources of these two jurisdictions was good enough to allow a systematic presentation of either one or the other. He eventually made the following compromise, which, as all compromises, is unsatisfactory. The book presents the perspective of Japan and (the People’s Republic of) China each time the author was able to identify the applicable rule and source. This means that Chinese and Japanese rules and doctrines are not only presented when they are original and different from those of France, England or the United States (for instance, the reciprocity requirement in the Chinese law of foreign judgments), but also when they are similar (for instance, when China or Japan adopted rules clearly inspired from EU private international law). 

Functional Method of Comparative Law

The comparison of all these materials raised issues that comparative legal scholars commonly encounter. One was to determine which rules were functionally equivalent in the legal systems under scrutiny and should thus be compared or, conversely, opposed.

One well known example is the comparison of the treatment of parallel litigation in the common law and in the civil law tradition. The civil law tradition has a tool specifically designed for that purpose (the lis pendens doctrine), which applies when two courts have been seized of the same dispute (the court seized second should decline jurisdiction). In the common law tradition, the aim of the doctrine of forum non conveniens is not strictly speaking to determine how a common law court should react to the existence of parallel litigation in a foreign country. It regulates the jurisdiction of common law courts and allows them to decline to exercise jurisdiction if a foreign court appears to be more appropriate for deciding the dispute. Though not a tool concerned strictly speaking with parallel litigation, the doctrine of forum non conveniens serves the same function as lis pendens in the civil law tradition. Both doctrines are thus studied in the same chapter in the book (together with anti-suit injunctions), and the second edition includes new developments presenting how variations of the doctrine of forum non conveniens have recently developed in EU private international law (raising the issue of its coexistence in a single legal order with lis pendens), but also in Japan and in China.

Conversely, comparative private international law offers remarkable examples of concepts seemingly borrowed from one legal tradition to the other, but which developed in an entirely different way, to eventually serve different purposes. One of them is the doctrine of renvoi. It is found both in the civil and the common law traditions. The fact that a French term is used in the English (and U.S.) conflict of laws would suggest that the common law tradition also borrowed the concept from French law. But that it not the case. Renvoi under French law (and rinvio or Verweisung in other civil law jurisdictions) is an entirely different doctrine than the English doctrine of renvoi. They bear the same name, but function differently, because they serve different purposes. They are still treated in a same section in the book, but with the goal to oppose them and show they are not functionally equivalent.

Posted by Professor Gilles Cuniberti (University of Luxembourg)