The Foundation of Choice of Law: Choice and Equality

ISBN : 9780190622305

Sagi Peari
344 ページ
156 x 235 mm

This book focuses on the subject of choice of law as a whole and provides an analysis of its various rules, principles, doctrines and concepts. It offers a conceptual account of choice of law, called choice equality foundation (CEF) which aims to flesh out the normative basis of the subject. It provides a justification of the nature and limits of such popular principles as party autonomy, most significant relationship, and closest connection. It also discusses such topics as the actual operation of public policy doctrine in domestic courts, and the relation between the notion of international human rights and international commercial dealings, and makes some suggestions about the ability of traditional rules to cope with the advancing challenges of the digital age.


I. The Formal Structure of Choice of law Rules: Three Choice of Law Methodologies
A. The Inherently Formal Structure of Classical and Interest Analysis Choice of Law Methodologies
B. Challenging the Formal Structure of Choice of law Rules: Better Law Methodology
1. Better Law: Two Versions and Two Challenges
2. Better Law as a Primary Rule: Robert Leflar & Friedrich Juenger
3. Targeting the Better Law Approach as a Primary Rule
4. Better Law as a Subsidiary Rule
C. Situating CEF within the Formal Structure of Choice of Law Rules and the Better Law Story
II. Choice Pillar I: Understanding Savigny's Theory of Choice of Law as
Voluntary Submission
A. Step 1: Three Basic Insights on the Nature of the Subject
1. Basic Insight (1): The Basic Unit of Inquiry Has to be Related to the Concept of Legal
2. Basic Insight (2): Choice of Law Rules Must Be Linked to States' Territories
3. Basic Insight (3): The Choice of Law System Has to Be Universal
B. Step 2: Theory Revealed - Organizing Principle of Voluntary Submission
1. The Relation to Roman Law and the Scholarship of Organizing Principles
2. The Operational Mechanism of the Principle
C. Step III: Two Deviations from the Voluntary Submission Principle
1. Deviation I: Savigny's Exceptional Category of Anomalous Laws
2. Deviation II: The Frequent Affixation on Juridical Presumptions
III. Choice Pillar II: Returning Savigny's Theory to its Origins
A. The Kantian Origins of Savigny's Organizing Principle of Voluntary Submission
1. Kantian System of Right
2. Savigny's System of Rights
B. CEF's Choice Pillar: the Principle of Juridical Relational Choice
1. The Requirement of Juridical Relational Choice
2. The Presence of a Foreign Element in the Factual Matrix of the Case
C. The Operational Mechanics of the Choice Pillar: Party Autonomy and Constructive
1. Party Autonomy Principle
2. The Doctrine of Constructive Inference
IV. The Equality Pillar
A. The Link to Better Law as a Subsidiary Rule
B. The Limits to Kantian (and CEF's) Positivism: (1) Barbarism
(2) Innate Equality;
and (3) State Equality
1. The Barbarism Exception
2. Innate Equality Exception
3. States' Equality Principle
C. The Two Challenges of Better Law and CEF's Positivism
1. The Subjectivity and Legitimacy Challenges
2. CEF's Positivism
D. Evil Laws as a Reflection of the Equality Pillar
1. The Notion of Evil Laws in Legal Theory
2. Mutual Benefits: What Can Evil Laws and the Equality Pillar Teach Each Other?
E. Public Policy as Equality Pillar in Courts
1. Terminology
2. Loucks v. Standard Oil
3. Oppenheimer v. Cattermole
4. Kuwait Airways v. Iraqi Airways
V. Further Development and Implications
A. Tort Law
1. American Babcock v. Jackson and English Chaplin v. Boys
2. Conduct Regulating versus Loss Distribution Distinction
3. The Distinction in the New York Court of Appeal
B. Lex Fori as a Very Dangerous Solution?
1. Conceptually Different Questions
2. Savigny's Objection to Choice of Law Shopping
3. When CEF Cannot Escape lex fori's Application: (1) the classification question
and (2) the lacuna left by the Application of the Equality Pillar
C. Mandatory Rules
1. Mandatory Rules, their Presence in Contemporary Choice of Law Practice, and Scope of CEF's Argument
2. The Genesis of Mandatory Rules within Savigny's Category of Anomalous Laws and its
Incompatibility with CEF
3. States' Interests, Lex Fori and the Reasons for Mandatory Rules
4. Mandatory Rules and the Puzzles of Party Autonomy
D. Substance- Procedure Distinction
1. Three Matters
2. Some Thoughts on the Substance-Procedure Distinction
3. Matter I: Challenging the Traditional Right-Remedy Distinction
4. Matter II: Challenging the lex- fori regit processum Doctrine- the State-Based Foundation of Procedural Rules
5. Matter III: Widening the Scope of Public Policy Doctrine
VI. The Relation to Theory & Practice
A. The Relation to Other Choice of Law Accounts
1. Interest Analysis and Better Law
2. Classical Choice of Law Methodology and its Vested Rights Version
3. Legal Realism Criticism and Rules' Manipulation
B. The Relation to Neo-Kantian Theory of Private Law - Corrective Justice
1. Choice & Equality within the Structures of Corrective Justice and CEF
2. CEF's Vision of Choice & Equality
3. The Role of Corrective Justice Within the Operational Mechanism of CEF
C. The Relation to the Notion of Human Rights
D. American Second Restatement
1. General Overview
2. Some Tentative Thoughts on Reciprocal Contribution
E. The Challenge of the Digital Age
1. The Challenge of the Internet
2. Accommodation of Traditional Doctrines
3. CEF's Analysis of Internet Choice of Law Cases
Appendix A: Savigny's Model of Choice-of-Law Rules
Appendix B: CEF's Model of Choice-of-Law Rules
Appendix C: CEF vs. Savigny
Appendix D: CEF vs. Classical, Interest Analysis and Better Law Choice of Law Methodologies


Sagi Peari is Visiting Scholar and Adjunct Faculty at Osgoode Hall Law School at York University. Dr. Peari has published widely in private international law, private law theory, international commercial law, dispute resolution, comparative law, international human rights and legal pluralism, and has published in the American Journal of Comparative Law, University of Toronto Law Journal, McGill Law Journal, Osgoode Hall Law Journal, Melbourne Journal of International Law, and the Duke Journal of Comparative and International Law, among others. He was a recipient of the Hauser Global Fellowship at NYU and received the ASIL Prize in Private International Law. He holds an LLM and SJD from the Faculty of Law at the University of Toronto.