Posted Content•
Federalism in the European Union and the United States: Subsidiarity, Private Law and the Conflict of Laws
TL;DR: The United States has long been a source of influence and inspiration to the developing federal system in the European Union as mentioned in this paper, and increasingly both systems may have the opportunity to profit from each others' experience in federal regulatory theory and practice.
Abstract: The United States has long been a source of influence and inspiration to the developing federal system in the European Union. As E.U. federalism matures, increasingly both systems may have the opportunity to profit from each others’ experience in federal regulatory theory and practice. This article analyses aspects of the federal ordering in each system, comparing both historical approaches and current developments. It focuses on three legal topics, and the relationship between them: (1) the federal regulation of matters of private law; (2) rules of the conflict of laws, which play a critical role in regulating cross-border litigation in an era of global communications, travel and trade; and (3) ‘subsidiarity’, which is a key constitutional principle in the European Union, and arguably also plays an implicit and under-analyzed role in U.S. federalism. The central contention of this article is that the treatment of each of these areas of law is related – that they should be understood collectively as part of the range of competing regulatory strategies and techniques of each federal system. It is not suggested that ‘solutions’ from one system can be simply transplanted to the other, but rather that the experiences of each federal order demonstrate the interconnectedness of regulation in these three subject areas, offering important insights from which each system might benefit.
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Book•
19 Dec 2019TL;DR: In this paper, the authors provide an unprecedented analysis and appraisal of party autonomy in private international law -the power of private parties to enter into agreements as to the forum in which their disputes will be resolved or the law which governs their legal relationships.
Abstract: This book provides an unprecedented analysis and appraisal of party autonomy in private international law - the power of private parties to enter into agreements as to the forum in which their disputes will be resolved or the law which governs their legal relationships. It includes a detailed exploration of the historical origins of party autonomy as well as its various theoretical justifications, and an in-depth comparative study of the rules governing party autonomy in the European Union, the United States, common law systems, and in international codifications. It examines both choice of forum and choice of law, including arbitration agreements and choice of non-state law, and both contractual and non-contractual legal relations. This analysis demonstrates that while an apparent consensus around the core principle of party autonomy has emerged, its coherence as a doctrine is open to question as there remains significant variation in practice across its various facets and between legal systems.
106 citations
Dissertation•
29 Jun 2015
TL;DR: The methode conflictuelle and the methode des regles materielles as discussed by the authors assure completude of the systeme, a.k.a. procedure en droit international prive parait de prime abord simple.
Abstract: La question de la procedure en droit international prive parait de prime abord simple a resoudre tant la competence de la loi du for est empreinte d’evidence. C’est sous l’angle des methodes du droit international prive – et particulierement la methode conflictuelle et la methode des regles materielles – dans le cadre de l’action de l’Union europeenne que la reflexion a ete developpee. La place de cette derniere dans les sources des deux premieres justifie cette position. L’evidence de la regle enoncee ci-dessus s’est rapidement fait ressentir. Elle a pu faire douter de la pertinence du recours a la methode conflictuelle pour resoudre les difficultes que l’institution regionale entend annihiler dans les litiges comportant un element d’extraneite. Mais les difficultes de definition de la categorie procedure retiennent tout aussi rapidement l’attention. Il apparait ainsi un premier champ d’action de l’Union, deja explore certes, mais devant etre complete. Toutefois, l’edification de l’espace judiciaire europeen – car la est l’objectif poursuivi – semble necessiter, de l’aveu meme des autorites europeennes, d’endiguer les disparites procedurales. Ce sont les regles materielles elles-memes qui paraissent, souvent, poser question dans les litiges transfrontieres en rendant difficile, notamment, la libre circulation des decisions. C’est donc vers cette seconde methode du droit international prive que l’Union europeenne a du se tourner. La vocation a agir de l’Union ayant ete etablie, et un rapide etat des lieux de l’acquis ayant ete dresse, il a pu etre recherche les regles materielles qui semblaient necessaires. Au-dela de celles-ci, la methode conflictuelle assure la completude du systeme.
95 citations
Dissertation•
09 Jul 2019
TL;DR: In this paper, the authors examined the supposed subsidiarity of unjust enrichment in English, French and Scots law, and concluded that unjust enrichment cannot be explained on the basis that it or elements thereof are subsidiary to anything else.
Abstract: This thesis examines the supposed subsidiarity of unjust enrichment in English, French (ie, of the action de in rem verso, in the category of quasi-contracts), and Scots law. Its central argument is that the relations (i) of unjust enrichment with other areas of law, namely, special statutory regimes, property, contract, and tort/delict, and (ii) in French law, of the action de in rem verso with different quasi-contractual claims, cannot be explained on the basis that unjust enrichment, or elements thereof, are subsidiary to anything else. Various scholarly accounts are considered, along with primary materials. Chapter one summarises basic relevant features of unjust enrichment in each jurisdiction under consideration. Chapter two examines linguistic and contextual perspectives on subsidiarity (respectively, from Latin, English, and French, then from the Roman Catholic Church, European Union law, and European human rights law). From these perspectives are distilled six conceptual essentials of subsidiarity, which any use of subsidiarity must respect. Chapter three of the thesis explores the current position of subsidiarity in each jurisdiction under consideration, and why so many have that unjust enrichment is somehow subsidiary (the main reason being its extreme generality and consequent potential to upset the solutions provided, or refused, by other legal institutions). Subsequent chapters then apply the essentials distilled in chapter two to arguments that unjust enrichment is subsidiary, to statute, or property, for example. This analysis shows, not that unjust enrichment should not be subsidiary to the other institutions examined, but that it cannot be subsidiary to them. Alternative explanations of unjust enrichment’s external and internal relations are put forward to replace subsidiarity. It is hoped that this will contribute to the disappearance of subsidiarity from unjust enrichment discourse, and foster a better understanding, both of unjust enrichment in general, and how its power can be controlled.
53 citations
50 citations
References
More filters
Book•
19 Dec 2019TL;DR: In this paper, the authors provide an unprecedented analysis and appraisal of party autonomy in private international law -the power of private parties to enter into agreements as to the forum in which their disputes will be resolved or the law which governs their legal relationships.
Abstract: This book provides an unprecedented analysis and appraisal of party autonomy in private international law - the power of private parties to enter into agreements as to the forum in which their disputes will be resolved or the law which governs their legal relationships. It includes a detailed exploration of the historical origins of party autonomy as well as its various theoretical justifications, and an in-depth comparative study of the rules governing party autonomy in the European Union, the United States, common law systems, and in international codifications. It examines both choice of forum and choice of law, including arbitration agreements and choice of non-state law, and both contractual and non-contractual legal relations. This analysis demonstrates that while an apparent consensus around the core principle of party autonomy has emerged, its coherence as a doctrine is open to question as there remains significant variation in practice across its various facets and between legal systems.
106 citations
Dissertation•
29 Jun 2015
TL;DR: The methode conflictuelle and the methode des regles materielles as discussed by the authors assure completude of the systeme, a.k.a. procedure en droit international prive parait de prime abord simple.
Abstract: La question de la procedure en droit international prive parait de prime abord simple a resoudre tant la competence de la loi du for est empreinte d’evidence. C’est sous l’angle des methodes du droit international prive – et particulierement la methode conflictuelle et la methode des regles materielles – dans le cadre de l’action de l’Union europeenne que la reflexion a ete developpee. La place de cette derniere dans les sources des deux premieres justifie cette position. L’evidence de la regle enoncee ci-dessus s’est rapidement fait ressentir. Elle a pu faire douter de la pertinence du recours a la methode conflictuelle pour resoudre les difficultes que l’institution regionale entend annihiler dans les litiges comportant un element d’extraneite. Mais les difficultes de definition de la categorie procedure retiennent tout aussi rapidement l’attention. Il apparait ainsi un premier champ d’action de l’Union, deja explore certes, mais devant etre complete. Toutefois, l’edification de l’espace judiciaire europeen – car la est l’objectif poursuivi – semble necessiter, de l’aveu meme des autorites europeennes, d’endiguer les disparites procedurales. Ce sont les regles materielles elles-memes qui paraissent, souvent, poser question dans les litiges transfrontieres en rendant difficile, notamment, la libre circulation des decisions. C’est donc vers cette seconde methode du droit international prive que l’Union europeenne a du se tourner. La vocation a agir de l’Union ayant ete etablie, et un rapide etat des lieux de l’acquis ayant ete dresse, il a pu etre recherche les regles materielles qui semblaient necessaires. Au-dela de celles-ci, la methode conflictuelle assure la completude du systeme.
95 citations
Dissertation•
09 Jul 2019
TL;DR: In this paper, the authors examined the supposed subsidiarity of unjust enrichment in English, French and Scots law, and concluded that unjust enrichment cannot be explained on the basis that it or elements thereof are subsidiary to anything else.
Abstract: This thesis examines the supposed subsidiarity of unjust enrichment in English, French (ie, of the action de in rem verso, in the category of quasi-contracts), and Scots law. Its central argument is that the relations (i) of unjust enrichment with other areas of law, namely, special statutory regimes, property, contract, and tort/delict, and (ii) in French law, of the action de in rem verso with different quasi-contractual claims, cannot be explained on the basis that unjust enrichment, or elements thereof, are subsidiary to anything else. Various scholarly accounts are considered, along with primary materials. Chapter one summarises basic relevant features of unjust enrichment in each jurisdiction under consideration. Chapter two examines linguistic and contextual perspectives on subsidiarity (respectively, from Latin, English, and French, then from the Roman Catholic Church, European Union law, and European human rights law). From these perspectives are distilled six conceptual essentials of subsidiarity, which any use of subsidiarity must respect. Chapter three of the thesis explores the current position of subsidiarity in each jurisdiction under consideration, and why so many have that unjust enrichment is somehow subsidiary (the main reason being its extreme generality and consequent potential to upset the solutions provided, or refused, by other legal institutions). Subsequent chapters then apply the essentials distilled in chapter two to arguments that unjust enrichment is subsidiary, to statute, or property, for example. This analysis shows, not that unjust enrichment should not be subsidiary to the other institutions examined, but that it cannot be subsidiary to them. Alternative explanations of unjust enrichment’s external and internal relations are put forward to replace subsidiarity. It is hoped that this will contribute to the disappearance of subsidiarity from unjust enrichment discourse, and foster a better understanding, both of unjust enrichment in general, and how its power can be controlled.
53 citations
50 citations
TL;DR: In this paper, the authors argue that, quite apart from whether state law is itself efficient, an anti-preemption rule of statutory construction has benefits for the national law-making process.
Abstract: How easily should courts infer that federal statutes preempt state law? An ongoing debate exists on the question in Congress and among scholars and judges. One side calls for judges to protect federalism by adopting a rule of statutory construction that would bar preemption absent a clear statement of preemptive intent. Opponents argue against such a "clear statement" rule by arguing that state control over preemptable topics is often presumptively inefficient, because common-law juries lack expertise and because states are prone to imposing external costs on their neighbors. This article sidesteps these debates over preemption and instead argues that, quite apart from whether state law is itself efficient, an anti-preemption rule of statutory construction has benefits for the national law-making process. Because of the size and heterogeneity of the population that it governs, Congress has institutional tendencies to avoid politically sensitive issues, deferring them to bureaucratic resolution, and instead concentrating on constituency service. Non-federal politicians can disrupt this tendency to ignore or suppress political controversy, by enacting state laws that regulate business interests, thus provoking those interests to seek federal legislation that will preempt the state legislation. In effect, state politicians place issues on Congress' agenda by enacting state legislation. Because business groups tend to have more consistent incentives to seek preemption than anti-preemption interests have to oppose preemption, controversial regulatory issues are more likely to end up on Congress' agenda if business groups bear the burden of seeking preemption. Moreover, the interests opposing preemption tend to use publicity rather than internal congressional procedures to promote their ends. Therefore, by adopting an anti-preemption rule of construction, the courts would tend to promote a more highly visible, vigorous style of public debate in Congress.
32 citations