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The Conflicts Restatement and the World

  • Ralf Michaels


Some sixteen years ago, on the occasion one of many symposia on the possibility of a new Restatement on Conflict of Laws to replace the much-derided Second Restatement, Mathias Reimann suggested that a new Restatement should focus on the requirements of what he called “the international age.” Conflict of laws is increasingly international, he pointed out. This remains true today—just recall that three of the four recent U.S. Supreme Court decisions on personal jurisdiction concerned international conflicts. A new Restatement must take that into account. Reimann formulated three very sensible wishes for drafters of a new Restatement: they should consider every rule and principle they formulate with international disputes in mind; they should work comparatively; and they should include foreign advisers.

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1 Reimann, Mathias, A New Restatement—For the International Age, 75 Ind. L.J. 575 (2000). Similarly, Symeonides, Symeon, A New Conflicts Restatement: Why Not?, 5 J. Priv. Int’l L. 383, 401-03 (2009).

2 J. McIntyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780 (2011) (English defendant with a U.S. distributor); Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011) (foreign defendants; accident in France); Daimler Ag v. Bauman, 134 S. Ct. 746 (2014). The fourth, domestic, case was Walden v. Fiore, 134 S. Ct. 1115 (2014).

3 Reimann, supra note 1, at 583-88.

4 Andrea Bjorklund (Montreal); Richard Garnett (Melbourne); Catherine Kessedjian (Paris); Bea Verschraegen (Vienna).

5 See, e.g., Restatement (Third) of Conflict of Laws, Preliminary Draft No. 2 (Aug. 12, 2016) (hereinafter “Draft”) § 1.04 cmt. a (“Consideration has also been given to foreign codifications, particularly choice-of-law codes, and the practice of foreign courts”), § 2.01 Reporter’s note 1 (“For example, the concept of habitual residence has gained significant acceptance throughout U.S. law as well as international and supranational law and the law of other countries”); § 5.01 cmt. e (listing recent codifications worldwide). Concrete comparative references are spread around the current draft. Cf., by contrast, Restatement of the Law (Second) Conflict of Laws § 10 cmt. 1 (AM. Law Inst. 1971) (“The rules in the Restatement of thus Subject are derived, unless otherwise indicated, from cases with elements in one or more sister States. These interstate cases provide most of the relevant authority”); Reimann, supra note 1, at 576-77.

6 Draft, supra note 5, § 1.04; for a list of factors, see id. cmt. d. The promise, id. that “differences have been accommodated, where necessary, by the explicit articulation of different rules for the interstate and international context” has not yet, as far as I can see, been implemented. Some Reporters’ notes do make clear distinctions, however. See, e.g., § 5.08 Reporters’ note 2, p. 164 (certification of questions of foreign law beyond U.S. State and federal courts); § 5.09 Reporters’ note 2 (discussing comparatively European approaches to insufficient information about foreign law).

7 Michaels, Ralf, Restatements, in Max Planck Encyclopedia of European Private Law 1466 (Basedow, et al. eds, 2012).

8 Restatement (Third) of the Law of Agency 7 (Introduction—Common Law and Statutes), 11-12 (Reporter’s Notes) (AM. Law Inst. 2006).

9 See Symeon C. Symeonides, Codifying Choice of Law Around the World (2014). The draft draws on this book frequently.

10 For Europe, see Hay, Peter, European Conflicts Law After the American “Revolution”—Comparative Notes, 2015 U. Ill. L. Rev. 2053 .

11 Draft, supra note 5, § 5.04.

12 Witten, Ralph U., U.S. Conflict-of-Laws Doctrine and Forum Shopping, International and Domestic (Revisited), 37 Tex. Int’l L.J. 559 (2002).

13 The current draft does not, unfortunately, contain a provision on international law limits on choice of law. See Draft, supra note 5, at XXVII. It does suggest, though without discussion, that its rules comply with international law. See id. § 1.01, cmt. e. See also, Whytock, Christopher A., Toward a New Dialogue Between Conflict of Laws and International Law, 110 AJIL Unbound 150 (2016).

14 Symeonides, Symeon C., The First Conflicts Restatement through the Eyes of Old: As Bad as its Reputation?, 32 So. Ill. L. Rev. 39 (2007).

15 Restatement (Second) of Conflict of Laws § 6(2) (Am. Law Inst. 1971).

16 Reppy, William A., Eclecticism in Choice of Law: Hybrid Method or Mishmash?, 34 Mercer L. Rev. 645 (1983).

17 But see, for a contrary view, Weinberg, Louise, A Radically Transformed Restatement for Conflicts, 2015 U. of Ill. L. Rev. 1999 , 2001 n. 3 and passim.

18 Draft, supra note 5, § 5.01 (“The process of formulation and reexamination of [rules of choice of law] requires consideration not only of the specific policies of the relevant internal law rules but also of the general policies relating to multistate occurrences and policies relating to the predictable and efficient conduct of litigation and the structuring of out-of-court behavior.”)

19 Draft, supra note 5, at xiv-xxi, § 5.01 Reporter’s note on cmt. b; § 5.02 cmt. a, c; Kermit Roosevelt, Conflict of Laws 1-2 (2010).

20 Restatement of the Law (Third) Conflict of Laws, Preliminary Draft No. 1, (Am. Law Inst., Oct. 1, 2015), § 5.01 cmt. b and Reporter’s note to cmt. b.

21 Draft, supra note 5, § 5.02 cmt. c.

22 Id. at xvii-xviii.

23 Id. § 6.01 cmt. a, § 6.04 cmt. a.

24 See Commission Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations (“Rome II”), at 12, Com (2003) 427 final (July 22, 2003) (“Article 3(1), which establishes an objective link between the damage and the applicable law, further reflects the modern concept of the law of civil liability which is no longer, as it was in the first half of the last century, oriented towards punishing for fault-based conduct: nowadays, it is the compensation function that dominates, as can be seen from the proliferation of no-fault strict liability schemes.”); Parliament and Council Regulation 864/2007 of July 11 2007, on the law applicable to non-contractual obligations (Rome II), art. 17, 2007 O.J. (L 199), 40, (“In assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability”).

25 Childress, Donald III, Comity as Conflict: Resituating International Comity as Conflict of Laws, 44 U.C. Davis L. Rev. 11 (2010).

26 But see, Weinberg, Louise, A Radically Transformed Restatement for Conflicts, 2015 U. Ill. L. Rev. 1999 .

27 Draft, supra note 5, § 5.08 Reporter’s note 2, p. 164.

28 Asahi Metal Ind. Co. v. Superior Court, 480 U.S. 102 (1987).

29 Cf. Restatement (Third) of Foreign Relations, § 403 (Am. L. Inst. 1987).

30 See Silberman, Linda J., “Two Cheers” For International Shoe (and None for Asahi): An Essay on the Fiftieth Anniversary of International Shoe, 28 U.C. Davis L.J. 755, 760.

31 Erbsen, Allan, Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather Than Liberty After Walden v. Fiore, 19 Lewis & Clark L. Rev. 769 (2015).

32 Restatement of the Law (Second) Conflict of Laws §§ 32, 43, 187 (Am. Law Inst. 1971).

33 For English law (which may be leading in this area), see only Briggs, Adrian, Agreements on Jurisdiction and Choice of Law (2008); Fentiman, Richard, International Commercial Litigation (2d ed. 2015).

34 For discussion, see especially the concurrent opinions by JJ. Posner and Wood in Bodum Usa, Inc. v. La Cafetière, Inc., 621 F.3d 624, 628 (7th Cir. 2010).

35 Draft, supra note 5, § 2.08 Reporter’s note 3.

36 The Duke Journal of Comparative and International Law will organize, on November 4-5, a conference on the topic of “Interna tionalizing the Conflict of Laws Restatement.“ Participants will include all three reporters as well as Patrick Borchers, Hannah Buxbaum, Donald Earl Childress III, Ann Laquer Estin, Richard Fentiman, Horatia Muir Watt, Mathias Reimann, Linda Silberman, Symeon Symeonides, Louise Ellen Teitz, and myself.

* Adviser to the ALI Restatement (3rd) Conflict of Laws and the Restatement (4th) Foreign Relations. Thanks for valuable suggestions to Hannah Buxbaum, Carlos Vázquez, and Christopher Whytock.

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