Ralf Michaels

EU Law as Private International Law? Re-Conceptualising the Country-of-Origin Principle as Vested Rights Theory

One of the most pertinent issues in contemporary European conflict of laws is the tension between Community law and traditional choice of law rules. The biggest problem comes not from the transposition of member state rules on choice of law into methodologically comparable EC Regulations, but rather from the so-called country-of-origin principle. This principle holds, broadly, that EU member states may not impose obligations on a provider of goods and services that go beyond the obligations imposed by the providers home state. Originally conceived mainly with public law obligations in mind, the principle has an impact on choice of law insofar as it bars member states from applying their own law to the providers conduct, even if they have the closest connections to this conduct. The exact relationship between the so called country of origin principle, and private international law, has long puzzled scholars and courts. Yet attempts at explanation and reconciliation have so far been unsuccessful because they started from an inappropriately narrow understanding of private international law. Integrating comparative legal history, this paper proposes a broader understanding of private international law beyond the current post-Savignyan approach. Thus broader approach makes it possible to recognize how the country of origin principle is remarkably similar to an almost forgotten and universally rejected private international law approach - the vested rights theory. The article demonstrates the parallels between the country of origin principle and US, English, French and German historical versions theories of vested rights. This insight presents an interesting challenge. The vested rights theory is now universally rejected because the criticism brought forward against it was and is felt to be irrefutable. One might think the same criticism would be able to bring the country of origin principle down, too. Indeed, the article shows how current criticism of the country of origin principle replicates to a large degree earlier criticism made against the vested rights theory. Remarkably, however, it shows also that the country of origin principle can refute the criticism. The return of vested rights, and its regained ability to overcome seemingly irrefutable criticism, hold a broader lesson. The rise and fall (and rebirth) of private international law approaches depends less on abstract considerations and more on general ideas and ideologies of the times - in this case, economic liberalism.

Private Law and the State: Comparative Perceptions and Historical Observations

The relation of private law to the state is one of the most complex aspects of the challenges posed for the law by Europeanization and globalization. It is not only distinct from that between public law and the state; it is also not the same in different legal systems. This article provides a historical and comparative overview of this relation in Germany and in the United States. It analyses the historical conditions and reasons for which the state became the ultimate source of authority for private law in Europe but remained largely without importance for doctrinal discussions and jurisprudential decisions within private law. It also identifies some factors that can explain largely different developments in the United States, where, despite the conceptual absence of the state within private law, private law was never seen to the same degree as autonomous from social policy. On the basis of these comparative and historical observations, the article concludes with more general, theoretical remarks on some of the problems that may be seen as core aspects of the relation of private law and the state.

The Second Wave of Comparative Law and Economics

I wish to lay out the emerging trends in law and economics as a call to give up what was so appealing about the first wave of law and economics – namely the illusion of resolution, certainty and mastery over complex legal issues – in favour of greater partiality, imperfection, and multiplicity, but also greater wisdom. The emerging law and economics – what I am calling the second wave of law and economics – is a humbler endeavour, one that shows greater respect for the complexity of law. And one that promises, I believe, to have more to say to legal scholars, jurists, and legislators as a result.

Public and Private International Law: German Views on Global Issues

The relationship between public and private international law, the issue of the excellent book under review, has often been addressed. But the question is ever new because it is asked under ever-changing circumstances. First, circumstances differ between countries. In the United States, there has long been a tendency towards unifying public international law and (international) choice of law (which is, tellingly, dealt with in the Restatement for Foreign Relations).

Transnationalizing Comparative Law

Comparative law will not die in the 21st century, but nor can it remain unchanged. Comparative law as we have it today still retains its roots in 1900: it is focused on states, on positive law, and on a scientific approach. Comparative law in the age of transnationalism will have to transnationalize: it must move beyond the state, it must move beyond positive law, and it must endorse cultural approaches. We must retain our critique of legal nationalism, but we must add our critique of uncritical legal universalism.

Dreaming law without a state: scholarship on autonomous international arbitration as utopian literature

* Arthur Larson Professor, Duke University School of Law. E-mail: michaels@law.duke.edu. This article is based on a lecture given at the London School of Economics in the fall of 2011. It still maintains some of the experimental character of a lecture, and does not purport to offer comprehensive references, especially on the topics of arbitration and lex mercatoria. I thank Nicola Lacey, Rebecca Myers, Annelise Riles, Tatiana Sainati and Peer Zumbansen for valuable comments and discussions, and Kristina Alayan for last minute research assistance.

Explanation and Interpretation in Functionalist Comparative Law -- a Response to Julie de Coninck

I am excited about Julie de Coninck’s project as described in the article in this journal, and expanded in another one, published elsewhere, and grateful to the journal’s editors to invite my brief response. I share the author’s discontent with the state not only of method of comparative law but also of the debate itself, in which too much emphasis lies in criticism and too little in the formulation of new, better methodology. I am intrigued by her interest in building on one tradition in comparative law, namely the functional method – without necessarily denying that other methods are possible as well. Her own proposal, merely summarized in the fourth section of her

Some Fundamental Jurisdictional Conceptions as Applied in Judgment Conventions

The law of jurisdiction and of the recognition and enforcement of foreign judgments is confused. So is the debate about it. Basic concepts, even that of jurisdiction, have ambiguous meaning. Misunderstandings, most prominent in the failure to conclude a worldwide judgments convention at the Hague, are the consequence. This article tries to bring conceptual clarity to the field through an analysis of concepts and relations. The article first shows that jurisdiction as a requirement for the rendering of a decision (direct jurisdiction) and jurisdiction as a requirement for the decisions enforceability elsewhere (indirect jurisdiction), are logically independent from each other. It goes on to show that the three possible values of deontic logic - obligatory, optional, and impermissible conduct - are reflected in three possible statuses that jurisdictional bases can have: such bases may be required, excluded, or permitted. A combination of both distinctions leads to nine different possible combinations of direct and indirect jurisdiction. The article analyzes each of these nine in detail. Such an analysis is crucial for the drafting of judgment conventions. Traditionally, a distinction existed between so-called single conventions that regulate only enforcement of foreign judgments, and double conventions that regulate also direct jurisdiction. Arthur von Mehren, for whose memorial volume this article is written, developed a third category, the so-called mixed convention. Although it represented a considerable improvement, the exact structure of mixed convention never became fully clear. This article proposes a new typology that is both richer and more exact. Although the article draws on rich comparative material from existing conventions, and although it emphasizes repeatedly the normative implications both of different values for jurisdictional bases and of different types of conventions, the articles prime aim is analytical, not normative. However, far from being a mere formalist exercise, such an analysis lays the indispensable prerequisites for a proper normative analysis. The definition of clear concepts does not guarantee proper policy debates, but without clear concepts policy debate is impossible. In this sense, the paper hopes to help provide new foundations for such debates.

Im Westen Nichts Neues? Zum Stand Der Rechtsvergleichung 100 Jahre Nach Dem Pariser Kongress - Gedanken Anlasslich Einer Jubilaumskonferenz in New Orleans [Nothing New in the West? On the State of Comparative Law 100 Years After the Paris Congress - Reflections on the Occasion of a Centennial Conference in New Orleans]

?Les nouvelles sont bonnes.? Mit diesen Worten leitete Rodolfo Sacco, Ita liens Altmeister der Rechtsvergleichung1, die Konferenz in New Orleans ein, zu der das dortige Eason Weinmann Center for Comparative Law und die In ternational Association of Legal Science eingeladen hatten2. Die Tagung soll te Klarheit ?ber den Stand der Rechtsvergleichung schaffen, und zwar weni ger in konkreten Einzelfragen, als vielmehr bei ihren Grundlagen: Metho den, Zielen, Funktionen. Solche Themen behandelt die praktisch rechtsver gleichende Arbeit selten; sie erfolgt ganz ?berwiegend pragmatisch, anhand des konkreten Materials. Man h?lt sich an die Ansicht Zweigerts, da? ?Wis senschaften, die sich mit ihrer eigenen Methodenlehre zu besch?ftigen Anla? haben, kranke Wissenschaften sind?, da? die rechtsvergleichende Methode ohnehin ?nicht von vornherein in allen Einzelheiten festgelegt, sondern al lenfalls als Hypothese formuliert werden kann? und da? (notwendig?) das ?methodische Grundprinzip der gesamten Rechtsvergleichung [...] das der Funktionalit?t? ist3. F?r praktische Arbeit ist solcher Pragmatismus oft unent behrlich ? wer autofahren will, mu? nicht jedes Mal zuerst von Grund auf

Comparative Law and Private International Law

This Encyclopedia entry covers these topics:I. Comparative lawII. Comparative private international lawScholarship; Comparison of foundations and individual rules; Application of comparative private international lawIII. Comparative law in the application of private international law doctrines 1. Characterization; Renvoi; 2. Determining the content of foreign law; 3. Better law; False conflicts; 4. Comparative impairment; 5. Ordre public; 6. Coordination of different laws: adaptation, transposition, substitution 7. Substantive rules in private international law 8. Forum non conveniensIV. Comparative law as the basis of private international law 1. The third school of comparative law 2. Private international law as applied comparative lawV. Consequences