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Conflicting Justice in Conflict of Laws

Updated: Jul 15, 2020

By: Roxana Banu

Choice-of-law rules determine which national law (not necessarily that of the forum) applies in private law matters that cross over multiple jurisdictions. Given the ubiquity of interpersonal cross-border relations, choice-of-law rules play an enormous role in securing justice in the transnational social realm. For example, they determine whether individuals can recover retirement benefits from worldwide investments through pension funds, whether they can receive compensation following an accident abroad, or whether their foreign marriages, divorces, adoptions, or support orders will be recognized or invalidated at home.

Yet the legal field of conflict of laws has always been divided between two theoretical paradigms known as “conflicts-justice” and “material-justice,” such that a unified view of justice in the transnational realm has remained elusive. It has long been assumed that contrary to material-justice theories, conflicts-justice theories are disinterested in the actual substantive result of a dispute reached through the application of choice of law rules. It is presumed that from a conflicts-justice perspective, choice-of-law rules are thought to ensure justice simply by identifying the proper geographical link between the individuals or the action and the state whose law is applied. This Article shows that these assumptions are the result of deep misunderstandings about the analytical premises of conflicts-justice theories. Through a detailed account of the intellectual history of theories of justice in conflict of laws in the second half of the twentieth century, this Article argues that the conflicts-justice and material-justice theories are in fact complementary, and that their different insights work in tandem to secure justice for cross-border private law matters. It further shows that, contrary to widespread assumptions by scholars and judges alike, the two theories lead to the same results in some of the most controversial tort law scenarios.


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