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This chapter focuses on the legal treatment of choice of law to illustrate one important function of choice-of-law clauses: predictability. Without these clauses, the parties must rely on a morass of legal rules that give them at best vague ideas about what rules apply to their relationships. This chapter describes the choice-of-law theories that scholars have developed and courts have applied over the last century, with an emphasis on the current choice-of-law rules for contracts. The current system is unsatisfying because it leaves parties with little ability to know at the time of entering into their contract what law will govern their relationships and transactions and facilitates the passage and maintenance of bad laws. Unfortunately, Congress, the state legislatures, and the Supreme Court have consistently failed to help contracting parties escape from the confusing common law choice-of-law rules. The chapter concludes by demonstrating that enforcement of choice-of-law clauses is the best hope for enabling contracting parties to obtain predictability and the best-fitting governing law.

The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.

This chapter outlines the emergence of the conflict of laws or private international law, as a distinct discipline within English municipal law; but one that cannot be severed from either the spread of common law in the Empire or the growth of public international law.

This chapter proposes a way to preserve the benefits of the law market while eliminating some of the impediments to its efficient operation: a federal statute that compels states to enforce choice-of-law clauses. The proposed statute is crafted to both promote enforcement of contractual choice of law and enable states to retain their power to enact “super-mandatory” rules that trump choice-of-law clauses. The proposal and analysis therefore attempt to balance state regulatory concerns with the benefits of jurisdictional competition. The chapter begins by showing why the proposed solution needs to be initiated by Congress rather than the state governments, why state uniform laws do not provide a solution to the problems addressed by choice of law, and why a statute is necessary to provide needed clarity and predictability for contracting parties.

This chapter introduces the concept of the market for law that the book will explore in detail. It describes the relationship between this market and the field of law called “conflict of laws.” Allowing parties to choose the applicable law by contract facilitates clarity about the applicable law and enables the parties to choose the law that best suits their joint needs. However, allowing contracting parties to create their own legal certainty thus raises thorny issues. One might wonder why contracting parties should be able to declare that their relationship is governed by the law of one sovereign state and not others. This chapter begins the exploration of these issues.

Francis A. Mann was a solicitor in full-time practice who nevertheless had a more profound influence on the development of modern English case law than almost any academic writer. A discussion on Mann's contribution to the case law is particularly appropriate because he came to be a devoted admirer of the English legal system and its creative use of precedent. In addition, Mann was one of the last survivors of those outstanding lawyers who were forced to flee Germany (and later, Austria) after the advent of Adolf Hitler made the position of Jews, not only in their personal lives but also in academic, professional, and judicial life, intolerable. This chapter chronicles the life of Mann as a law practitioner in Germany and England, his handling of cases related to public international law and international monetary law, his work on the legal aspect of money, the doctrine of jurisdiction in international law, the law governing state contracts, problems faced in the courts in cases involving foreign affairs, conflict of laws, and arbitration.

The final chapter includes thoughts on some of the broader implications of the book. The law market can change one's view of regulation. What really matters to whether regulations are binding is not whether a rule is mandatory, but whether it is “super-mandatory” in the sense of withstanding parties' ability to contract for more permissive laws. The law market also has implications for the future of the law of subordinate jurisdictions in larger, often federal, systems. The globalization of business has profoundly undermined the territorial basis of lawmaking. The law market replaces territory with contract, thereby breathing new life into lawmaking by the subordinate jurisdictions. Finally, although the book has tended to emphasize the market for law within the United States, it closes by emphasizing that the analysis applies equally to international law markets.

This chapter reviews the work and influence of Kurt Lipstein, starting with his major work on Roman law. Lipstein's early interest in Roman law is not without its enduring significance. It is more than sixty years since he first began supervising Roman law in Cambridge University, England, and he is still introducing undergraduates to that subject. In Cambridge at least, the study of the law of Rome remains a vital (and compulsory) part of the Law Tripos. Lipstein knows better than most the importance of Roman law in the formation of the understanding and mind of scholarly lawyers. Lipstein's work on the Roman law of suretyship and private international law, the latter of which covers unjustified enrichment and the conflict of laws, is also discussed, along with his views on the rules of international tribunals regarding private international law, and his foray into the law of intellectual property.

This chapter discusses Japanese law on international relations. Topics covered include the Nationality Law, the status of aliens, foreign exchange and foreign trade law, rules on the conflict of laws, marriage and divorce, and problems relating to transactional disputes.

In achieving European integration, both private law and public law should entail coming up with and imposing new tools for multi-level governance and the implementation of suitable regulatory strategies. Because substantive unification is perceived as a ‘discredited option’ whether it is enforced through a ‘common frame of reference’ or through a code, it may be irrelevant to cases of private law which encompass torts and cross-border contracts since it covers the administrative authorizations for services and the product quality rules applied to goods. Although the Commission proposed a Directive on Services in the Internal Market that would address using the principle of country of origin, derogations, harmonization, and other such issues, it is noteworthy that the conflict of laws has been somehow absorbed by the mutual recognition principle. This chapter examines why using the disappearance of the conflict of laws as a means for regulation may pose certain problems.

This chapter examines the interactions between the proposed Common European Sales Law (CESL) and domestic and other European law. It first discusses general issues relating to the application of the CESL. This includes the requirements that must be met for the CESL to apply to a contract; the consequences of any failed choice; the scope of the CESL; the consequences of a choice of CESL outside the situations envisaged by the Commission proposal; specific problems which a choice of CESL can cause before courts outside the European Union; the relationship between CESL provisions and other consumer protection provisions; and overriding mandatory provisions. The chapter then looks at how the CESL interfaces, from a conflict of laws viewpoint, with various areas of law, including the law of obligations; of unfair trade practices; property law; intellectual property law; and procedural law, including jurisdiction and collective proceedings against standard terms.

Otto Kahn-Freund was an émigré legal scholar whose contribution to the scholarship of labour law was an entirely singular one. By the 1970s, he was rightly regarded as the doyen of labour law studies in Britain. It was recognised that, as a subject of academic study, labour law had grown from most modest beginnings in the preceding thirty years, almost entirely as the result of Kahn-Freund's inspiration and enthusiasm. By the end of that decade, and even more in the early 1980s, that particular process of cross-fertilisation had become a matter of fascination to the growing community of British employment lawyers, and a considerable amount of writing was devoted to analysing and expounding Kahn-Freund's legacy. This chapter chronicles Kahn-Freund's early life, his academic apprenticeship with eminent and charismatic lawyer and Social Democrat politician Hugo Sinzheimer, his tenure as a professor at the London School of Economics, his contributions in the fields of family law and conflict of laws, and his election as chair of comparative law at Oxford University.

This chapter discusses the ways in which exit from undesirable laws could occur. It also discusses the process of jurisdictional choice and conflict of laws, the traditional approaches used to resolve conflict law issues, interest analysis as basis for conflict of law decisions, the second Restatement of Conflict of Laws, choice-of-law and its clauses, and enforcement of arbitration agreements.

This chapter focuses on the role of the House of Lords in relation to commercial law. It discusses basic contract law, shipping law in general including marine insurance, sale of goods, bills of exchange and banking, company law, and some parts of the conflict of laws. It argues that from the point of view of the steady development of commercial law through judicial decisions, the picture presented by the House of Lords' decisions is incomplete. A large number of commercial decisions have also emanated from the Privy Council: during the first thirty years of the 20th century significant cases, especially in banking and insurance, came from Canada, Australia, and New Zealand; in the mid to late 20th century from Australia and New Zealand; and until quite recently still from New Zealand. Although these are outside the scope of the chapter, whatever their true precedential status, all can be used in argument, and some of them are regularly cited as marking key developments in English commercial law.

The purpose of this Chapter is to establish when the law of armed conflict applies to cyber operations. As conventional jus in bello does not provide a general definition of ‘armed conflict’ but merely distinguishes between different types of armed conflicts to which different sets of rules apply, these types of conflict are addressed in turn. First, the Chapter focuses on international armed conflicts and distinguishes between several scenarios that might lead to the application of the jus in bello to cyber operations. In particular, both cyber operations in the context of an existing traditional armed conflict and standalone cyber operations are discussed in order to establish whether international humanitarian law applies to them. The Chapter also deals with cyber operations in the context of belligerent occupation. Cyber operations in and as non-international armed conflicts are then examined, before turning to cyber operations as internal disturbances and tensions.

This chapter discusses how international conventions reduce the dependence on the conflict of laws by means of international uniform law. It focuses on the Cape Town Convention and Protocols concerning security, title reservation, and leasing agreements relating to mobile equipment of high unit value, and their contribution to international commercial law.

Private international law has two limbs. It determines when an English court has jurisdiction to adjudicate where one or more of the parties, or some component of the analysis, is not English, and it decides whether to give effect to the result of adjudication in a foreign jurisdiction: this amounts to the conflict of jurisdictions. It also determines whether an English court, hearing a case with some foreign element, will apply English or foreign law to the dispute: the conflict of laws. This chapter first looks at the rules governing the jurisdiction of an English court, then at the treatment of foreign judgments, and then at choice of law for the various substantive areas of law.

This chapter examines two legal models for combating transnational terrorism: extraterritorial law enforcement and transnational counterterrorist military operations. It challenges conventional opinion that military operations against transnational terrorists which do not fall neatly within the state-centric conflict categories derived from the Geneva Conventions should be treated as extraterritorial law enforcement activities. It argues that the humanitarian law framework must be extended to counterterrorist military operations by appealing to core historical principles of humanitarian law and to military protocol, namely, the mandate in the U.S. Department of Defense Law of War Program to “comply with the principles of the law of war during all military operations.” It contends that it is invalid and disingenuous to characterize counterterror military operations employing combat power under a “deadly force as a first resort” authority as extraterritorial law enforcement. The chapter also considers the underlying nature and purpose of the existing law-triggering paradigm, the different nature of the authority derived from the law of armed conflict compared to the law enforcement framework, and the importance of maintaining a clear distinction between jus ad bellum and jus in bello.

The focus of this chapter is on the law of armed conflict and as such, analyses the influence of international humanitarian law (IHL) on the rules on the use of force, discussing the implementation of specific elements of IHL, in particular the principle of distinction in the rules of engagement (ROE) which authorize the use of force against persons and objects. Further, in discussing the principle of distinction, specific attention is given to the role of ROE as regards targeting persons and objects, including the concept of direct participation in hostilities and the difference between status-based targeting and behaviour-based targeting. This chapter will also explore other elements of the principles of IHL, such as proportionality and precautions in attack.