Transnational Law and Conflict of Laws: A Japanese Perspective

2021 ◽  
pp. 478-492
Author(s):  
Dai Yokomizo
Keyword(s):  
Global Governance ◽  
Legal Pluralism ◽  
Classical Approach ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Transnational Law ◽  
New Approaches ◽  
Japanese Perspective

This chapter reflects on the relation between transnational law and conflict of laws. Whereas the methodology of transnational law is, to a certain extent, in line with new approaches on conflict of laws seeking to find solutions for conflict of laws in a context of increasing global governance, the transnational method seems less compatible with classical choice-of-law methodology used in Japan and would therefore bring serious challenges to Japanese conflict of laws. To respond to these challenges, the chapter proposes identifying the specific situations in which a classical approach might still work and those in which it might bring an undesirable solution for global governance, before considering a complete change of the choice-of-law method. Finally, the chapter suggests that conflict of laws as a methodology could provide transnational law with fresh techniques to resolve conflict of norms in an era of global legal pluralism.

Global PPPs and the Choice of Law Challenge

2020 ◽  
Vol 8 (1) ◽  
pp. 79-115
Author(s):  
Yock Lin Tan
Keyword(s):  
Common Law ◽  
Public And Private ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
The Public ◽  
Legal Structure ◽  
Foreign State ◽  
Relational Distance ◽  
Belt And Road ◽  
The Belt And Road

Abstract Positing the public-private partnership as an important optional legal structure in the delivery of infrastructural services in the Belt and Road Initiative (BRI), this exploratory article discusses the crucial, but formidable, problems of risks in management or governance. It considers whether traditional common law conflict of laws as applied in Singapore courts can contribute principles that recognize shared expectations and commitment or foster solidarity, mutuality, and trust—values regarded as essential to their effective resolution. Arguing that traditional conflicts distinctions between State and non-State law as well as between public and private law are unhelpful in this respect, it concludes that modern critical developments contain promising prospects for developing such principles. These principles will predicate a role for foreign State substantive public policies and, if there is relevant ‘relational distance’, implement them in BRI choice-of-law disputes, thereby reconciling private efficiency and public accountability beyond borders.

“It’s the End of the World as We Know It”

2020 ◽  
Vol 26 (4) ◽  
pp. 553-576
Author(s):  
Matthias Hofferberth ◽  
Daniel Lambach
Keyword(s):  
Global Governance ◽  
World Politics ◽  
Point Of View ◽  
Punk Rock ◽  
New Approaches ◽  
The World ◽  
New Energy ◽  
End Of The World

Abstract This article contends that practices of, and reflections on, global governance are diversifying without any particular teleology. Therefore, it proposes a “postgovernance” perspective to capture and make sense of the multiplicity of concurrent developments. Just like post-punk followed punk rock and provided new energy, postgovernance provides opportunities to revitalize debates on world politics. Postgovernance allows both scholars and practitioners to consider the persistence of “traditional” forms of global governance as well as the simultaneous emergence of new approaches. This article thus proposes postgovernance as a mode of world politics in a postparadigmatic world that is dynamic yet inconsistent. We advance this argument by outlining what postgovernance entails, by taking stock of current debates from a postgovernance perspective, and by discussing how these can be advanced from a postgovernance point of view.

scholarly journals Very Long Engagements: The Persistent Authority of Bridewealth in a Post-Apartheid South African Community

2019 ◽  
Author(s):  
Michael W. Yarbrough
Keyword(s):  
Qualitative Research ◽  
South African ◽  
Young Women ◽  
Extended Family ◽  
Legal Pluralism ◽  
Marriage Rates ◽  
New Approaches ◽  
Family Narratives ◽  
Kwazulu Natal ◽  
African Community

This article examines the persistent authority of lobola, the customary practice for forming marriages in many South African communities. South African marriage rates have sharply fallen, and many blame this on economic challenges completing lobola. Using in‐depth, qualitative research from a village in KwaZulu‐Natal, where lobola demands are the country's highest and marriage rates its lowest, I argue that lobola's authority survives because lay actors have innovated new approaches for pursuing emerging desires for marriage via lobola. I argue that dyadic narratives of marriage increasingly circulate alongside “traditional” extended‐family narratives, especially among the young women who strongly support lobola while yearning for gender‐egalitarian marriages. My argument synthesizes actor‐oriented analyses of legal pluralism with Ewick and Silbey's theorization of lay actors’ role in producing legality to illuminate how lay actors contribute not only to the form and content of different legal systems, but also to the reach of their authority.

The Conflict of Laws and Unjust Enrichment

2021 ◽  
pp. 175-198
Author(s):  
Andrew Burrows
Keyword(s):  
European Union ◽  
The European Union ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Unjust Enrichment ◽  
The Past ◽  
The Law ◽  
The Relationship

This essay revisits the relationship between the conflict of laws and the law of unjust enrichment (or, more widely, the law of restitution) in light of shifts in the legal landscape over the past forty years. It considers the rules of jurisdiction and of choice of law applied by the English courts, accounting for the effects of the UK’s departure from the European Union.

scholarly journals Out-Beale-Ing Beale

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 68-73 ◽  
Author(s):  
Carlos M. Vázquez
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
European Community ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Larry Kramer

In response to the 1991 Supreme Court decision resuscitating the presumption against extraterritoriality [hereinafter “PAE” or “presumption”],EEOC v. Arabian American Oil Co.(Aramco), Larry Kramer described the presumption as an anachronism—a throwback to the strict territorialist approach to choice of law that prevailed before the mid-Twentieth Century but has been mostly abandoned since then. The title of his scathing article,Vestiges of Beale, referred to Joseph Beale, the Harvard Law professor and reporter of the First Restatement of Conflict of Laws, whose since-discredited theories underlay that Restatement’s approach to choice of law. In the cases sinceAramco, the Court has strengthened and expanded the presumption. With its decision inRJR Nabisco v. European Community, it is fair to say, the Court has out-Beale’d Beale.

Sign in / Sign up

Export Citation Format

Share Document