Symeon C. Symeonides, The American Choice-of-Law Revolution in the Courts:
Today and Tomorrow (2002) 298 Recueil des Cours. Pp. 448.
Unlike the European Union, where a common market is seen as necessarily
entailing the harmonization of laws, the North American free trade area assumes
ongoing legal diversity amongst participating countries. Informal convergence is of
course possible, and the dynamic of NAFTA has contributed to this, but there is no
mechanism, in place or foreseen, for eliminating so-called conflicts of laws or
harmonizing the treatment of them. Europe, in contrast, has implemented major
instruments of harmonization of rules of jurisdiction, recognition of foreign
judgments, and choice of law in matters of contract, and is now well on the way to
formulation of uniform rules for conflicts in matters of tort and delict. (The Rome II
proposals for a pan-European regulation are now going through the legislative
process.) The contrast with North America is particularly striking in these fields since,
given the number of North American jurisdictions and volume of case law, it is even
difficult to know what is going on in North America, let alone think of eventual
uniform rules.
The underlying diversity of North American law is made manifest by the
remarkable volume which Professor Symeonides has contributed to the Hague
Academy of International Law on the so-called American revolution in matters of
choice of law. Known both for his work in codifying choice of law rules in Louisiana,
Puerto Rico, and Oregon, and for his annual survey in the American Journal of
Comparative Law of some 1,500 U.S. conflicts cases per year, Professor Symeonides
here provides a splendid overview of all that has gone on in U.S. conflicts law since
1963. That was the year of Brainerd Curries famous statement that We would be
better off without choice-of-law rules1 and of the decision of the New York Court of
Appeals in Babcock v. Jackson,2 which rejected the lex loci delicti in matters of tort in
favour of application of the law of the state with the greatest interest in the particular
issue raised by the case. Much has been said of the ensuing revolution but it is
striking, and indicative of current diversity, that the traditional lex loci delicti rule
still prevails in ten states and that this group of states is the second largest in terms of
adherence to a particular conflicts methodology, surpassed only by those states
twenty-two in numberwhich adhere to the Restatement Second. Professor
Symeonides identifies five further methodologies (92) and the states adhering to them
(from three to six in number) such that in the United States alone the diversity is far
greater than anything which might have previously prevailed in Europe. The situation
is exacerbated, moreover, by the degree of flexibility associated with many of the new
methodologies. The author described the Restatement Second as implying virtually
unlimited discretion (120) in a way that does not require hard thinking (122).
1 Notes on Methods and Objectives in the Conflict of Laws in Selected Essays on the Conflict of
Laws (Durham, N.C.: Duke University Press, 1963) 177 at 183.
2 240 N.Y.S.2d 743 (N.Y.C.A. 1963).
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There would be some identifiable trends in the case law, identified not from judicial
reasons but from actual results of cases, notably a general pattern of application of the
law of a common domicile of parties in single-vehicle accidents (at least where
favourable to the plaintiff) (179, 180) and absolving a defendant from liability where
the act and injury occur in the defendants jurisdiction and immunity is there enjoyed
(202).
In general, however, Professor Symeonides is very critical of the results of the so-
called revolution. He sees a movement from radical certainty to radical flexibility
(414); suggests that to prevail is one thing and to succeed is another (417 [emphasis
in original]); and concludes that the revolution went too far since too much
flexibility can be as bad as no flexibility at all (417). It would therefore be time for
an exit strategy (419) and indeed the pendulum would now be swinging back
towards issue-specific rules, often combined with escape clauses which would
allow deviation in appropriate, exceptional cases (430, 431). The conclusion should
give pause to those in Canada who would expand the notion of the real and
substantial connection3 (implying virtually unlimited discretion (120)) out of the
field of recognition of foreign judgments, where it originated, and generally into that
of domestic jurisdiction, where there is no need for it whatsoever. En revanche, the
counter-revolution of the Supreme Court of Canada in Tolofson v. Jensen4 in adopting
in common law Canada a lex loci delicti rule with very limited possibilities of
exception, here achieves unexpected support. The same can be said of the overall
process of codification of choice-of-law rules in Book Ten of the Civil Code of
Quebec.
The reduced levels of diversity and flexibility that prevail in Canada must be
situated, however, within the broader cadre of the North American countries, and
increasing numbers of conflicts cases in North America are now transnational in
character. Paradoxically, in attempting to lessen diversity and flexibility within
Canada, Canadian courts and legislators contribute to ongoing diversity within North
America. The same is true for recent Mexican efforts to develop reliable choice-of-
law rules. The North American experience thus demonstrates that common markets
may be remarkably robust, and that diversity of laws is not a major impediment to
intensification of cross-border trade. This is most obviously the case if practicing
lawyers have some basic familiarity with the laws in presence, such that false
conflicts can be avoided. There is an obvious role for cross-border legal education in
this process.
H. Patrick Glenn
3 Maguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 at 1108, 76 D.L.R (4th) 256, La
Forest J.
4 [1994] 3 S.C.R. 1022, 120 D.L.R. (4th) 289.
