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A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging between Intellectual Property, Trade, Investment and Health

Author: Based on the analysis of Teubner and Fischer-Lescano there is a “clash of cultures” amongst the different autonomous social systems which establish themselves internationally which prevents any meaningful interaction between them
Baxter See
Berman PS
Doha Declaration on the TRIPS Agreement and Public Health
For some examples
For the integration of health and other non-trade objectives in the plain packaging dispute
In a similar way
In conflict-of-laws doctrine the desire of a state to apply its law, as expressed in the content of its statutes, is considered an acceptable criterion for resolving ConflictsL see Scoles
In essence the focus is on the competing rules and the interests they represent rather than the facts and their closest connection
In further developments of Currie's approach Baxter added this comparative-impairment theory as an addendum for the solution of true Conflicts
In private international law the forum must closely examine any Conflicting expert evidence on foreign law and form its own opinion based on the material presented
In the context of copyright Conflict of laws see the French decision
Judges lack this authority since according to Currie, the weighing of governmental interests is a “political function of a very high order …that should not be committed to courts in a democracy”
Koskenniemi M
Mclachlan see
Michaels
Michaels
Michaels
Morris See
On the TRIPS and public health debate see H Hestermeyer
On this aspect of reciprocity see Story
Pauwelyn
Pauwelyn J
Pauwelyn J
Phillip Morris Asia Limited v Commonwealth of Australia
R Okediji concludes that the Appendix has been “a dismal failure owing to unduly complex and burdensome requirements associated with its use”
Rahmatian A
Relying on the use (or abuse) of the precautionary principle in WTO law as an example Beckett argues that WTO adjudicators never really examine the principle's “status, meaning and effect in environmental law”, but instead create their own image of it within the WTO's internal environment
Ruse–Khan
Ruse–Khan H Grosse
Ruse–Khan H Grosse
Ruse–Khan H Grosse
Scoles
See also
See Doha Declaration on TRIPS and Public Health
See especially the debates about who are to be considered as the “parties” in whose relations the “relevant” rules must be applicable: ILC
See especially the fragmentation critique
See generally
See generally
See Section A
See Section D.6
See Section D.6
See Section E
Segger MC Cordonier
Simma B
Simma See
Simma See
Story J
Teubner
Teubner
Teubner
Teubner
Teubner
Teubner
Teubner
Teubner G
The application of governmental interest analysis requires ascertaining which of the states concerned has a more legitimate interest in having its social economic or administrative policies applied to the legal problem at hand. The theory was developed by the American scholar Brainerd Currie in his book
The latter approach by von Savigny focuses on legal relationships
The term
These cases where more than one state has an interest in its rules being applied are distinguished from those where the inquiry into the policies expressed in the laws reveals that only one state has such an interest (false conflicts) and those where none of the states involved is interested (no-interest pattern)
This is the French term for “breaking into smaller pieces”. In Conflict of laws this notion is often used to indicate that the choice-of-law determination may be made for each issue of the case separately
This term refers to the old Conflict-of-laws doctrines that prevailed in medieval city-states in what is now northern Italy (eg Venice Bologna, Modena): Conflicts of laws caused by increasing commercial interaction were initially resolved by a simplistic classifi cation of local laws
This wide understanding of Conflict is based on the approach by the ILC in its Fragmentation Report
von Mehren A
von Savigny FK
While in principle of course the state consent which led to the creation of the (competing) rules will call for an application of all rules
Publication venue: 'Bloomsbury Academic'
Publication date
Field of study

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