Lex maximi in hac causa momenti: oczekiwana rewolucja czy niepożądany przyczynek w teorii prawa kolizyjnego?
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Date
1974
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Wydział Prawa i Administracji UAM
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Lex Maximi in Hac Causa Momenti: The Awaited Revolution or an Unwelcome Addition to the Theory of Conflict of Laws?
Abstract
The aim of the article is to present the origin and the development of new
approaches in the American theory of conflict of laws and in the case law.
At the outset the author characterizes the basic principles of Restatement I,
Conflict of Laws (1934). That synthesis of the case law, influenced by the vested
rights theory, was to achieve simplicity and uniformity of results resorting to
"hard and fast choice-of-law rules".
Starting in the late .1950's courts confronted with multistate cases began to
avoid application of "the old rules" and to search for new approaches in order to
achieve more just results. However, by avoiding automatic application of the commands
summarized by the original Restatement, judicial decisions became less
predictable and more subjective.
The, article shows how the retreat from Restatement I, was aided by the
American Law Institute project, to elaborate a second Restatement.
The second part of the article presents the history of abolishment of the lex
loci delicti command (torts), and the retreat from the traditional choice of laws
rules in the field of contracts. Today, the majority of American courts accept the
basic approach of the Resitatement II (197(1), according to which, the law of the
most significant relationship to the matter under consideration should govern the
rights and duties of the parties in the majority of legal disputes (e.g. torts, contracts,
corporations, etc.)
It is emphasized that the rule of the most significant relationship does not
provide easy answers for those who try to apply the "government interests methodology"
which assumes the difficult task of comparison of the relative interests of
the state involved in a given dispute. Analyzing judicial decisions in the new era,
the author stresses the fact that the various techniques of weighing state interests
result in different dispositions of the same legal problem compare, for instance
the results achieved in the Babcock and in the Kell cases). Apart from that, even
the techniques of legal analysis proposed by leading representatives of the reformers
camp do not guarantee the required level of predictibility and uniformity. This is
partly due to the fact that many basic concepts used by the champions of the
government interests methodology are rather obscure and that they have several
meanings which shift from user to user (e,g. the "false conflict" idea in Currie's
methodology). On the other hand, until now no theorist has elaborated a statisfactry
technique of resolving "true" policy conflicts between two or more states. The list
of factors or "choice — influencing considerations" as listed by the Restatement II
or by Professor Leflar often favour conflicting values. It is difficult to conciliate, for
instance, the principle of advancement of the forum's interests with the command
of application of the better rule of law (Leflar). It is equally difficult to try to
advance the forum's interests, and, simultaneously, to give support to the policies
of the state of dominant interest in the case (Cheatham, Reese).
The author ends by observing that apart from its imperfections the doctrine
of lex maximi in hac causa momenti offers" "new frontiers" for a conflict of laws
scholar disillusioned with the mechanical application of the traditional "hard —
and — fast choice of laws rules". However, the abolishement of many old and simple commands should result in an effort to elaborate new rules which could
function more smoothly in the present era of multistate conflicts. The opposing
view, namely that what we only need is a general methodology of resolving conflicts
of laws seems to be a misbegotten idea. As it is illustrated by the post —
Babcock case law development in New York, the idea that "judges can be turned
loose in the three-diminensional chess games" (Rosenberg), involves to great risk
of unpredictability of results and of complicating the task of the judge.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 36, 1974, z. 3, s. 253-269