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The Law of Open Societies: Private Ordering and Public Regulation in the Conflict of Laws

The Law of Open Societies: Private Ordering and Public Regulation in the Conflict of Laws

Author: Jurgen Basedow
Publisher: Brill Nijhoff
ISBN: 9789004296794
Published In: June 2015
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book endeavours to interpret the development of private international law in light of social change. Since the end of World War II the socio-economic reality of international relations has been characterised by a progressive move from closed to open societies. The dominant feature of our time is the opening of borders for individuals, goods, services, capital and data. It is reflected in the growing importance of ex ante planning – as compared with ex post adjudication – of cross-border relations between individuals and companies. What has ensued is a shift in the forces that shape international relations from states to private actors.

The book focuses on various forms of private ordering for economic and societal relations, and its increasing significance, while also analysing the role of the remaining regulatory powers of the states involved. These changes stand out more distinctly by virtue of the comparative treatment of the law and the long-term perspective employed by the author. The text is a revised and updated version of the lectures given by the author during the 2012 summer courses of the Hague Academy of International Law.

Table of Abbreviations

Preface

Introduction

1. Private International Law and Social Change

2. Recent Trends in Private International Law

3. Purpose and Methods of Private International Law

4. Private and Public Actors

5. The Levels of Rule-making and the Conflict of Laws

6. Survey

Part I From Closed Nation-States to the Open Society

Chapter 1 The Advent of the Open Society

Section 1: The Open Society in Political Philosophy

Section 2: Globalization as a Driving Force of the Open Society

Chapter 2 Globalization and the Law

Section 1: Legal Underpinnings and Attendants of Globalization

Section 2: Consequences for Policy-Making and Regulation

Section 3: Outlook

Part II Private Ordering

Chapter 1 Substantive “Anational” Private Arrangements

Section 1: The International Transaction Dilemma

Section 2: The Export Trade

Section 3: International Tourism: Package Tour Operators

Section 4: Conclusion – The Domestication of International Transactions

Chapter 2 Theory of Choice of Law and Party Autonomy

Section 1: Party Autonomy in International Contract Law

Section 2: A Priori and Derivative Conceptions of Party Autonomy

Section 3: Theoretical Objections to Party Autonomy

Section 4: Theoretical Basis for Freedom of Choice

Section 5: Conclusion

Chapter 3 New Domains for Party Autonomy

Section 1: Contractual Relations Involving Third Parties

Section 2: Tort and Delict

Section 3: Property Rights

Section 4: Persons

Section 5: Family

Section 6: Succession

Section 7 : Procedural Dispositions

Section 8: Conclusion

Chapter 4 Optional Law in Europe

Section 1: The Europeanization of Private Law

Section 2: Optional Instruments of the European Union and the Conflict of Laws

Section 3: Optional Instruments in International Conventions

Section 4: Conclusion

Chapter 5 Deliberate Connections (Indirect Choice of Law)

Section 1: Connecting Factors Favouring Private Choice

Section 2: The Principle of (Mutual) Recognition

Section 3: Evasion of Law

Section 4: Conclusion

Part III Public Regulation

Chapter 1 State Action between International and Municipal Law

Section 1: Forms and Addressees of State Action

Section 2: Objectives of State Action

Section 3: Limitations of State Action

Section 4: Systematic Considerations and Survey

Chapter 2 Foreign Policy Measures and Their Effects in Private Law

Section 1: Recognition and Non-recognition of Foreign States or Governments

Section 2: Trade Embargoes

Section 3: Countermeasures (Blocking Statutes)

Chapter 3 Countervailing State Measures for Asymmetric Private Relations

Section 1: The “Weaker Party” and Its Protection

Section 2: Consumer Protection

Section 3: Employment Contracts

Section 4: Conclusion

Chapter 4 Imperative Norms: Protection of Foundational Principles

Section 1: Foundational Principles – a Survey

Section 2: The Legal Framework of Unilateral Adjudication – Imperative Norms

Section 3: Respect for Foreign Imperative Norms

Section 4: Conclusion

General Conclusion

1. Social Change – From Closed to Open Societies

2. A Change of Perspective – from Public to Private Ordering

3. Multiple Forms and Expansion of Private Arrangements

4. Public Regulation

5. Paradigm Europe

List of Statutory Materials

Table of Cases

Bibliography

Index.

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