《1979 Continental Lawyer Looks at Contemporary American Choice-of-Law Principles》.pdf

BERNARD AUDIT A Continental Lawyer Looks at Contemporary American Choice-of-Law Principles American scholars are fond of stating that the developments of the last four or five decades in conflict of laws have heralded a new era. While those developments have not failed to attract attention elsewhere, they have raised as much criticism as praise, and have been blamed for decreasing predictability and encouraging litiga- tion. Indeed, most Continental legal systems, as well as the English, remain basically faithful to the traditional rules, 2 whose criticism in- itiated the American revolution. Inasmuch as the changes which followed in America are not limited to inter-state conflicts, 3 it might be supposed that American and Continental choice-of-law principles are diverging from a common tradition. This is not a comforting thought for the comparative lawyer, who may wonder if the alleged gap is inevitable. Upon looking closer at modern American trends, a Continental jurist will normally approve of concepts and developments like false conflicts, interest analysis and the functional approach. But at the same time he will experience a feeling of d~ja vu and wonder whether some of the new era solutions would not be regarded as quite natural at home. In trying to articulate a reconciliation of those impressions, this article will first consider the inroads that re- cent American trends do make in traditional Continental thinking, concluding that they are more limited than may generally be be- lieved. The article will then consider the positive contribution which