Global Problems in Domestic Courts

We face an increasing number of problems that are essentially global in nature because they affect the world in its entirety: global cartels, climate change, crimes against humanity; to name a few. These problems require world courts, yet world courts in the institutional sense are largely lacking. Hence, domestic courts must function, effectively, as world courts. Given the unlikelihood of effective world courts in the future, our challenge is to establish under what conditions domestic courts can play this role of world courts effectively and legitimately

Why We Have No Theory of European Private Law Pluralism

The recent popularity of legal pluralism has now reached the area of European private law. In this paper Michaels scrutinizes the concepts of legal pluralism used by three of its most prominent proponents: Pierre Legrand, Jan Smits, and Thomas Wilhelmsson. He does not offer fully-fledged criticism of their theories (each of which are among the most fascinating and helpful in the European private law debate) but only address their use of ideas of legal pluralism, and the relation of these ideas with the legal pluralism debate. His analysis shows not only that these three use sharply different concepts of legal pluralism, but also, that none of these three concepts is in accordance with traditional definitions of pluralism. Further, it turns out that several points of criticism can be raised against their theories that stem from the legal pluralism debate. Michaels does not, here, take the second step of determining whether an actual concept of European private law pluralism can be established – and whether such a concept can withstand the criticism that has been voiced against the idea of legal pluralism

Global Legal Pluralism

Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines---comparative law, conflict of laws, public international law, and European Union law---have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism---the definition of law, the role of the state, of community, and of space---are altered under conditions of globalization. It addresses interrelations between different legal orders and various ways, both theoretical and practical, to deal with them. And it provides an outlook on the future of global legal pluralism as theory and practice of global law

Two Paradigms of Jurisdiction

Globalization causes convergence of legal orders. Or so it is argued. Law and economics scholars predict that legal orders will move towards the same efficient end state. They argue that the requirements of globalization will pressure legal orders to converge on the level of economic efficiency, because regulatory competition between legal orders makes it impossible for individual legal systems to maintain suboptimal solutions. Many comparative lawyers predict a similar convergence. In particular traditional functionalist comparatists have long held that unification of law was both desirable and unavoidable. Their basic argument is based on functional equivalence and can be summarized as follows: legal systems may look different because they have different doctrines and institutions; these differences, however, are only superficial, because the institutions fulfill the same functions and are therefore actually similar. Realizing that legal orders are already similar in substance should make it easy to unify the law formally as well

Preamble I: Purposes, Legal Nature, and Scope of the PICC; Applicability by Courts; Use of the PICC for the Purpose of Interpretation and Supplementation and as a Model

Professor Michael\u27s chapter provides commentary on Preamble I of the UNIDROIT Principles of International Commercial Contracts. Areas covered include purposes, legal nature and scope of the PICC; applicability by courts; use of the PICC for the purpose of interpretation and supplementation and as a model

Book Review

Reviewing, Rethinking the Masters of Comparative Law, (Annelise Riles ed., Hart Publishing 2001

How Asian Should Asian Law Be? – An Outsider’s View

Is there an Asian identity of Asian law, comparable to European identity and therefore similarly useful as a justification for unification projects? If so, what does it look like? And if so, does this make Asia more like Europe, or less so? Or is this question itself already a mere European projection? This chapter tries to address such questions. In particular, I look at a concrete project of Asian law unification—the Principles of Asian Comparative Law—and connect discussions about its Asian identity with four concepts of Asia. The first such concept is a European idea of Asia and Asian law, which defines a presumably homogeneous Asia on the basis of its level of difference from Europe. The next three concepts are concepts that emerged from Asian debates. Two off them explicitly invoke leadership of one country. A sinocentric concept of Asian law attempts to reinvigorate concepts from the time of Chinese dominance of East Asia prior to colonization. A Japanese concept of Pan-Asian law by contrast is built on Japanese modernization, which in turn was influenced by Europe. Finally, the idea of Asian values attempts to avoid leadership by any one country in favor of a truly Asian identity. None of these three chapters can fully avoid the central problems of the European projection: they are all defined by their relation to the West, and all of them invoke a relative degree of homogeneity as basis for identity. I close, therefore, with an alternative concept of Asia “as method” that attempts to overcome these two shortcomings and may offer a more promising path towards an idea of Asian law

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 provider\u27s 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 provider\u27s 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