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    The law of open societies : private ordering and public regulation in the conflict of laws / by Jürgen Basedow.

    • Title:The law of open societies : private ordering and public regulation in the conflict of laws / by Jürgen Basedow.
    •    
    • Author/Creator:Basedow, Jürgen, 1949- author.
    • Published/Created:[Leiden, The Netherlands?] : Brill Nijhoff, [2015]
      ©2015
    • Holdings

       
    • Library of Congress Subjects:Conflict of laws.
      Public law.
      Legal polycentricity.
      Social change.
    • Description:xxviii, 634 pages ; 25 cm
    • Series:Hague Academy of International Law monographs ; v. 9.
    • Notes:"Revised and updated version of the lectures given by the author during the 2012 summer courses at the Hague Academy of International Law"--Page 4 of cover.
      Includes bibliographical references (pages 579-626) and index.
    • ISBN:9004296794 (hardback)
      9789004296794 (hardback)
      9789004296800 (e-book)
    • Contents:Machine generated contents note: Introduction
      1. Private International Law and Social Change
      2. Recent Trends in Private International Law
      3. Purpose and Methods of Private International Law
      a. Legal certainty in a multi-jurisdictional world
      b. Exclusive jurisdiction
      c. Application of foreign law pursuant to choice of law
      d. Choice of law and the welfare state
      e. principle of recognition
      4. Private and Public Actors
      5. Levels of Rule-making and the Conflict of Laws
      6. Survey
      ch. 1 Advent of the Open Society
      Section 1: The Open Society in Political Philosophy
      1. Henri Bergson
      2. Karl Raimund Popper
      Section 2: Globalization as a Driving Force of the Open Society
      1. Technological Innovation
      2. Impact on Trade in Goods and Services
      3. Foreign Direct Investment
      4. Migration
      5. Globalization
      a. nation-State as the starting point
      b. Opening frontiers towards global life
      6. Conclusions
      ch. 2 Globalization and the Law
      Section 1: Legal Underpinnings and Attendants of Globalization
      1. Free Trade in Goods
      2. Trade in Services
      3. Free Movement of Capital
      a. Foreign direct investment
      b. Other capital flows
      4. Free Flow of Data
      5. Migration
      6. Institutionalization and Private Rights
      Section 2: Consequences for Policy-Making and Regulation
      1. Loss of State Knowledge and Private Rule-Making
      2. Delocalization and the Choice of Connecting Factors
      3. Regulatory Competition
      a. Private choice and State sovereignty
      b. Theoretical underpinnings
      c. Types of regulatory competition
      d. Limitations
      4. Loss of Influence of Individual States and Their Reactions
      a. National policy versus free trade
      b. Extraterritorial application of national law
      c. International minimum standards
      5. Collaboration of States: Unification, Harmonization, Coordination, Cooperation
      a. Purposes, institutions, history
      b. Forms of legal unification and harmonization
      c. Coordination by common rules on private international law
      d. Procedural cooperation
      Section 3: Outlook
      ch. 1 Substantive "Anational" Private Arrangements
      Section 1: The International Transaction Dilemma
      1. Legal Pluralism and Its Economic Effects
      2. Public and Private Remedies
      Section 2: The Export Trade
      1. Balancing Manifold Interests - the Lex Mercatoria
      2. Sellers and Buyers (Incoterms)
      a. Multifarious constellations
      b. Incoterms
      3. Carriers and Their Liability
      a. significance of transport documents
      b. carrier's liability
      4. Banks and Payment (Uniform Customs and Practices for Letters of Credit)
      a. Evolution of the letter of credit
      b. Uniform Customs and Practice for Documentary Credits
      5. Insurance
      Section 3: International Tourism: Package Tour Operators
      1. Emergence and Specific Demand
      2. Increasing Certainty through Regulation
      Section 4: Conclusion - The Domestication of International Transactions
      ch. 2 Theory of Choice of Law and Party Autonomy
      Section 1: Party Autonomy in International Contract Law
      1. Worldwide Recognition of Party Autonomy
      2. Exclusion of Party Autonomy in Latin America
      a. Brazil
      b. Uruguay
      3. Exclusion of Party Autonomy in the Middle East
      4. Limitations on the Power to Choose the Applicable Law
      a. Choice of non-State law - lex mercatoria
      b. Relation between the contract and the law selected
      c. Restrictions for specific contracts
      d. Conclusion and outlook
      Section 2: A Priori and Derivative Conceptions of Party Autonomy
      Section 3: Theoretical Objections to Party Autonomy
      1. Sovereignty
      a. Choice of law as an impairment of sovereignty
      b. Objective conception of the law
      c. Criticisms and countervailing contractual theories of State and law
      d. Conclusions
      2. Ordre public
      a. Specifications of the ordre public
      b. Domestic contacts
      c. Conclusions for choice of law
      3. No Binding Effect of Contracts outside a Legal Order
      a. conclusion of a contract as a result of the applicable law
      b. core and corona of the agreement
      4. Protection of Weaker Parties
      a. Freedom of choice and power
      b. Neutralization through competition
      c. Imbalances in motivation
      d. Macro-economic and individual disequilibrium
      5. Conclusion
      Section 4: Theoretical Basis for Freedom of Choice
      1. Efficiency
      2. Freedom and Natural Will
      3. Binding Effect
      4. Choice-of-Law Agreements as Self-fulfilling (Dispositional) Contracts
      5. Freedom of Choice as a Pre-governmental Right
      a. Enlightenment philosophy and human rights
      b. Clarification of freedom of choice as derived from human rights
      Section 5: Conclusion
      1. Interaction of Choice of Law and Objective Law
      2. Scope of Freedom of Choice in Private Law
      ch. 3 New Domains for Party Autonomy
      Section 1: Contractual Relations Involving Third Parties
      1. Agency
      a. structure of agency relations
      b. Choice of law and party autonomy
      c. Party autonomy under positive law
      d. Comments on the Hague Agency Convention
      e. Conclusion
      2. Assignment of Claims
      a. General backdrop
      b. Third-party effects: the Dutch solution
      c. law governing third-party effects: national conflict rules
      d. dual-track approach
      Section 2: Tort and Delict
      1. Specificity of Tort and Delict
      a. Primary and secondary rules of conduct
      b. Contract and tort
      2. Development of International Tort Law
      a. Lex fori
      b. Lex loci delicti
      c. Lex loci actus and lex loci iniuriae
      d. Specification and flexibilization
      3. Party Autonomy
      a. Survey
      b. Ex post choice of law
      c. Indirect ex ante choice of law
      d. Direct ex ante choice of law: Rome ll Regulation
      e. Direct ex ante choice: other jurisdictions
      f. Summary
      4. Limits of Party Autonomy for Specific Torts
      5. Conclusion: Comparative Assessment and Policy Considerations
      a. Party autonomy and its discontents
      b. Protection of the weaker party? About contract and tort
      c. Freedom of contract in substantive law and tort conflicts
      Section 3: Property Rights
      1. Development Towards Lex Situs
      a. lex situs and its rationale
      b. critical policy appraisal
      2. Party Autonomy: Acquisition and Loss of Rights in Rem in Movables
      a. Inconveniences of the situs rule
      b. Party autonomy as a solution
      c. Indirect admission of party autonomy through an escape clause
      d. Choice-of-law clauses with inter partes effects
      e. Title retention clauses in export contracts
      f. Party autonomy for movable property
      g. Summary
      3. Negotiable Instruments: Security Interests in Financial Collateral
      a. Changes of the commercial environment
      b. From lex situs to party autonomy
      4. Intellectual Property
      a. Nature, development and territoriality of intellectual property rights
      b. framework of the lex loci protectionis in international law
      c. scope of party autonomy
      5. Summary
      Section 4: Persons
      1. Scope and History of the Law of Persons
      a. law of persons - a remainder of the Middle Ages
      b. Divergent policies
      2. Capacity and the Protection of Adults
      a. rigidity of personal law
      b. First traces of party autonomy
      c. Enduring powers to act for incapable persons
      Section 5: Family 23o
      1. Family, Family Law, and Basic Conflicts Law Orientations 23o
      a. From social institution to family law
      b. Traditional choice-of-law approaches and party autonomy
      2. Effects of Marriage: Marital Property
      a. main property regimes
      b. Dumoulin and French conflicts law
      c. comparative survey over three conflicts principles
      d. Unification of conflicts law
      e. Conclusion
      3. Divorce
      a. significance and decline of marital status
      b. Basic orientations of the conflict of laws
      c. decline of nationality as a connecting factor and its consequences
      d. development towards party autonomy
      e. Rome III: Priority of party autonomy
      f. Conclusion
      4. Maintenance
      a. Basic conflicts orientations
      b. Party autonomy and its exceptions under the 2007 Hague Protocol
      5. Conclusion
      Section 6: Succession
      1. Historical Evolution and Conflict Taboos
      2. Trend Towards Party Autonomy
      3. Party Autonomy and Forced Heirship Restrictions in Present Conflicts Statutes
      4. Conclusion
      Section 7 : Procedural Dispositions
      1. Information on Foreign Law: the Division of Labour between the Parties and the Court
      2. Strategic Options for the Parties
      a. Pleading of foreign law
      b. Procedural agreements
      c. Allegations in law
      Section 8: Conclusion
      1. Extension of Party Autonomy and its Social Background
      2. Political Background: the Role of International Organizations
      3. Limitations of Party Autonomy
      ch. 4 Optional Law in Europe
      Section 1: The Europeanization of Private Law
      1. Evolution
      2. Types of Legislative Instruments
      Section 2: Optional Instruments of the European Union and the Conflict of Laws
      1. Company Law
      a. Corporate forms and legislative basis
      b. Conditions of eligibility: the international dimension
      c. residual national law and private ordering
      2. Intellectual Property
      3. Contract Law
      a. Development and conceptualization
      b. Common European Sales Law and the conflict of laws
      Contents note continued: Section 3: Optional Instruments in International Conventions
      1. 1964 Hague Sales Law (ULIS) and other Multilateral Conventions
      2. Franco-German Optional Matrimonial Property Regime
      Section 4: Conclusion
      ch. 5 Deliberate Connections (Indirect Choice of Law)
      Section 1: Connecting Factors Favouring Private Choice
      1. Formal Requirements and the Lex Loci Celebrationis
      a. recognition of the lex loci celebrationis
      b. How the rule evolved
      c. Examples of private dispositions
      2. From Nationality to Habitual Residence in the Law of Personal Status
      a. Rise and decline of nationality
      b. Old and new Hague conventions
      c. Domicile and habitual residence
      d. Private international law in the European Union
      e. Habitual residence and the open society
      3. Conclusion
      Section 2: The Principle of (Mutual) Recognition
      1. Concept of Recognition
      a. Multiple meanings and their common core
      b. Recognition of foreign judicial and administrative measures
      c. Recognition of legal situations
      2. Liberalization of the Recognition of Judgments
      a. Abandoning the review of the applicable law
      b. Loosening the review of jurisdiction
      3. Liberalization of the Recognition of Foreign Companies
      a. Incorporation theory and real seat theory
      b. International unification of conflicts law
      c. conflicts approach and private choice
      d. European developments
      e. Reactions of national conflicts law
      f. International company law and regulatory competition
      Section 3: Evasion of Law
      a. matter of legal construction
      b. Codified rules on evasion of law
      c. Freedoms granted by, and evasion of law
      Section 4: Conclusion
      ch. 1 State Action between International and Municipal Law
      Section 1: Forms and Addressees of State Action
      Section 2: Objectives of State Action
      1. Objectives of State rules on choice of law
      2. Domestic order and foreign policy in international relations
      3. example: private law conventions and the decline of reciprocity
      Section 3: Limitations of State Action
      Section 4: Systematic Considerations and Survey
      ch. 2 Foreign Policy Measures and Their Effects in Private Law
      Section 1: Recognition and Non-recognition of Foreign States or Governments
      1. Background in Public International Law
      2. Effects of (Non-)Recognition in Private International Law
      a. normative approach
      b. factual approach
      c. differentiated solution
      Section 2: Trade Embargoes
      1. On Restrictions of Foreign Commerce in General
      a. Types of trade restrictions
      b. Tendencies
      c. Legal issues
      2. Scope of an Embargo
      a. US pipeline embargo
      b. EU embargo against Iran
      3. "Enforcement" of an Embargo
      4. Other "Effects" of an Embargo
      a. Contract terms assigning the risk of an embargo
      b. lex causae theory and shared values
      c. special connection theory (Sonderanknüpfung)
      Section 3: Countermeasures (Blocking Statutes)
      1. Concept and Reasons for Their Adoption
      a. Concept
      b. weapon for economic warfare
      2. Occurrence and Content of Blocking Statutes
      3. Clawback Claims in Private International Law
      4. Blocking Legislation - a Political Instrument
      ch. 3 Countervailing State Measures for Asymmetric Private Relations
      Section 1: The "Weaker Party" and Its Protection
      1. Traditional Civil Law
      2. Categorical "Weakness" Resulting from Asymmetric Information
      a. Findings in legislation and economic explanation
      b. Pros and cons of State intervention in cross-border contracts
      3. Categorical "Weakness" Resulting from Market Dominance
      Section 2: Consumer Protection
      1. Survey
      2. Personal Scope
      a. consumer and the professional
      b. Inconvenience of the definition
      3. Substantive Scope
      4. Situative Scope - "Active" and "Passive" Consumers
      a. Rationale of the special connection
      b. contracting situation of the passive "consumer"
      c. Electronic commerce
      5. Special (Bilateral) Conflict Rules for Consumer Contracts
      6. Unilateral Approach
      a. absence of specific conflict rules for consumer contracts
      b. Public policy as the vehicle of consumer protection
      c. Unilateral enforcement in addition to a specific conflict rule?
      7. Conclusion
      Section 3: Employment Contracts
      1. Market Imperfections and Countervailing State Measures
      a. Market imperfections
      b. Complex regulation
      c. Application to cross-border labour relations: characterization
      d. Survey: confinement to bilateral conflict rules
      2. Manifestations of Cross-Border Labour Relations
      a. General
      b. Posting of workers
      c. Modern trends in industrial organization: Outsourcing
      3. Unilateral and Territorial Approach
      4. Steps Towards Bilateralism: United States
      5. Further Steps Towards Bilateralism: the European Model
      a. Elements of the European model
      b. Follow-up legislation outside the EU
      c. Party autonomy
      d. Objective connecting factors: habitual workplace
      e. Overall assessment of the habitual workplace or a cascade connection
      f. escape clause and maritime labour
      6. Overriding Mandatory Provisions
      a. room left by Article 8 Rome I
      b. Lex fori, lex contractus and the law of third States
      c. Definition of overriding mandatory provisions
      d. Overriding mandatory provisions and the European Court of Justice
      e. Outlook
      7. Posted Workers
      a. tension between social protection and economic efficiency
      b. Article 8 Rome I and the Posted Workers Directive of the EU
      c. Posted Workers Directive as overriding mandatory provisions
      Section 4: Conclusion
      ch. 4 Imperative Norms: Protection of Foundational Principles
      Section 1: Foundational Principles - a Survey 46o
      1. Collective Goods
      2. Essentials of the Social Model
      a. amalgam of public interest and protection of the weaker party
      b. policy-mix and the principle of territorial application
      3. Ethical Foundations
      a. Personal status and public policy
      b. Surrogate motherhood
      c. Other progress of medical and scientific research
      4. Conclusion
      Section 2: The Legal Framework of Unilateral Adjudication - Imperative Norms
      1. Public Policy and Overriding Mandatory Provisions
      a. Positive and negative public policy
      b. Lois de police and overriding mandatory provisions
      2. Concepts Distinguished
      a. According to the subject
      b. According to the general or specific style of regulation
      c. According to the scope of application
      d. According to the written or unwritten nature
      3. Identification of Overriding Provisions and Principles
      a. Explicit scope rules
      b. scope in the absence of scope rules
      c. political character of the task
      d. Review in federal entities
      e. Self-containment outside federal entities
      4. International Standards: Human Rights and Fundamental Rights
      a. Human rights and the conflict of laws
      b. Connections with the forum State
      5. Conclusion
      Section 3: Respect for Foreign Imperative Norms
      1. Introduction: Respecting Foreign Values
      2. Protection of Foreign Currencies
      a. Currency in private international law
      b. IMF Agreement
      3. Protection of Foreign Cultural Objects
      a. Cultural property, other tangibles and specific legislation
      b. Conflict rules: from lex situs to lex originis
      c. Conclusion
      4. Protection of Competition on Foreign Markets
      a. development of competition law
      b. effects doctrine as a unilateral conflict rule
      c. Growing respect for foreign competition law
      d. Emergence of bilateral conflict rules
      5. Conclusion
      Section 4: Conclusion
      General Conclusion
      1. Social Change - From Closed to Open Societies
      2. Change of Perspective - from Public to Private Ordering
      3. Multiple Forms and Expansion of Private Arrangements
      4. Public Regulation
      5. Paradigm Europe.
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