Font Size: a A A

The Latest Developments Of US And European PIL Jurisprudence

Posted on:2013-10-22Degree:DoctorType:Dissertation
Country:ChinaCandidate:L C LiFull Text:PDF
GTID:1226330395981349Subject:International Law
Abstract/Summary:PDF Full Text Request
Ever since1980s there’s a big step forward in European and US private international law theories and jurisprudence. Among disagreement between various authors,there is some new theories advocating human rights and substantive justice. The latest developments of European and US PIL theories have certain common pursuit of vales.While the increasing unification of substantive rules, there was also an ever-growing convergence of conflict rules. All of those are for the convenience and promotion of international civil and commercial communication, whose purpose is to resolve all private law disputes arising out of global and regional issues and its goal is to establish a new order of international civil and business community. All of those were based upon the idea that the international society as a whole would be a primary power. As a law department for resolving conflict of laws, private international law has become more and more important.The demand of practice has brought in theoretical innovation. Since the end of20st century, new features of international civil and commercial communication has become evident. As for European countries, political integration and economic integration has been strengthened. The movement of natural persons, capital and and intra-regional trade activities become more and more active. The unification of PIL by main power of member states has the features of Europeanized, federalized and constitutionalized. That’s to say, national PIL is coming to international PIL. In Europe, the Europeanized conflict of laws has required a paradigm shift as strong as a US Conflict Revolution. European conflict law in no longer private, national, domestic or international, which is now European, regulatory and mediatized.In recent years there is great advancement in US conflict law. The impact of politics on conflict law, going home of theories and rules, same sex marriage and jurisdiction and choice of laws in Internet world, freedom of expression and unilateral decision-making, human rights responsibility and choice of law of transnational corporations have become heated topics. A interdisciplinary perspective of economics, politics and anthropology has been used to study conflict laws. Now US scholars have demanded a new Restatement(the Third),into which some new rules would be adopted.Since the end of20st century a great change of value orientations has occurred. The application of result oriented rules to legitimization,marriage and support of children make a choice of law become more and more human and considerate of weak party including consumers, employees and victims. The favor to one side of two parties has become a concerted principle which has been influence by Currie’s governmental interests analysis and Cavers’s Preference principle. The favor principle has been a balanced rule.In European countries, flexible choice of law rules replaced old and rigid rules. As in the field of non-contractual obligations, the latest achievement is Rome II, which introduced the party autonomy principle and allowed those parties to make a choice of the applicable law to which he or she voluntarily abides by. The revolution of US tort conflict laws has based on non-rule approaches,which is for a flexible and expectable result of choice of laws. The introducing of such connecting factors as party autonomy,domicile and closer connection has shaped European conflict law,which embraced personal and territorial connecting points together, paid full respect to the autonomous choice of parties and more favorable to the realization of victim’s claims.The habitual residence in private international law in the United States relative to domicile is a relatively new concept, its meaning, extension and application of methods which are in development. April1,2008approved the accession of the United States "on cooperation in the protection of children and international adoption of the Convention" and making way through the transformation within the law of the land, used the concept of home along with access to the U.S. private international law. So far the United States case law on the interpretation and definition of custom homes are not consistent.International Private Law in Europe on research methods is an important innovation which is the basic paradigm of trying to use economics to study the choice of law issues, the entity would like to choice of law doctrine and choose doctrine, unilateralism and multilateralism, legal certainty and flexibility the basic issues of a more reasonable interpretation. Choice of law by both methods of cost benefit analysis to transform the traditional choice of law rules, so to achieve the dual goals of justice and efficiency balance.
Keywords/Search Tags:Conflict Justice, Substantive Justice, TransnationalCorporation Human Rights Disputes, Choice of lawMethod, Habitual Residence, Economic Analysis
PDF Full Text Request
Related items