The Law of Open Societies

Private Ordering and Public Regulation in the Conflict of Laws


This book endeavours to interpret the development of private international law in light of social change. Since the end of World War II the socio-economic reality of international relations has been characterised by a progressive move from closed to open societies. The dominant feature of our time is the opening of borders for individuals, goods, services, capital and data. It is reflected in the growing importance of ex ante planning – as compared with ex post adjudication – of cross-border relations between individuals and companies. What has ensued is a shift in the forces that shape international relations from states to private actors. The book focuses on various forms of private ordering for economic and societal relations, and its increasing significance, while also analysing the role of the remaining regulatory powers of the states involved. These changes stand out more distinctly by virtue of the comparative treatment of the law and the long-term perspective employed by the author. The text is a revised and updated version of the lectures given by the author during the 2012 summer courses of the Hague Academy of International Law.

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Prof. Dr. Dr.h.c.mult. Jürgen Basedow, LL.M. (Harvard Univ.) is Director of the Max Planck Institute for Comparative and International Private Law, Hamburg; Professor of Law, Univ. of Hamburg; Membre associé de l’Institut de droit international; Titular Member and Secretary General of the International Academy of Comparative Law (2008-2014); member of numerous advisory bodies at the German and EU level, inter alia Chairman of the German Monopolies Commission (2000 to 2008); member of the Groupe européen de droit international privé and of Deutscher Rat für Internationales Privatrecht.

Excerpt of table of contents:
Table of Abbreviations; Preface; Introduction;
1. Private International Law and Social Change
2. Recent Trends in Private International Law
3. Purpose and Methods of Private International Law
4. Private and Public Actors
5. The Levels of Rule-making and the Conflict of Laws
6. Survey
Part I From Closed Nation-States to the Open Society
Chapter 1 The Advent of the Open Society
Section 1: The Open Society in Political Philosophy
Section 2: Globalization as a Driving Force of the Open Society
Chapter 2 Globalization and the Law
Section 1: Legal Underpinnings and Attendants of Globalization
Section 2: Consequences for Policy-Making and Regulation
Section 3: Outlook
Part II Private Ordering
Chapter 1 Substantive “Anational” Private Arrangements
Section 1: The International Transaction Dilemma
Section 2: The Export Trade
Section 3: International Tourism: Package Tour Operators
Section 4: Conclusion – The Domestication of International Transactions
Chapter 2 Theory of Choice of Law and Party Autonomy
Section 1: Party Autonomy in International Contract Law
Section 2: A Priori and Derivative Conceptions of Party Autonomy
Section 3: Theoretical Objections to Party Autonomy
Section 4: Theoretical Basis for Freedom of Choice
Section 5: Conclusion
Chapter 3 New Domains for Party Autonomy
Section 1: Contractual Relations Involving Third Parties
Section 2: Tort and Delict
Section 3: Property Rights
Section 4: Persons
Section 5: Family
Section 6: Succession
Section 7 : Procedural Dispositions
Section 8: Conclusion
Chapter 4 Optional Law in Europe
Section 1: The Europeanization of Private Law
Section 2: Optional Instruments of the European Union and the Conflict of Laws
Section 3: Optional Instruments in International Conventions
Section 4: Conclusion
Chapter 5 Deliberate Connections (Indirect Choice of Law)
Section 1: Connecting Factors Favouring Private Choice
Section 2: The Principle of (Mutual) Recognition
Section 3: Evasion of Law
Section 4: Conclusion
Part III Public Regulation
Chapter 1 State Action between International and Municipal Law
Section 1: Forms and Addressees of State Action
Section 2: Objectives of State Action
Section 3: Limitations of State Action
Section 4: Systematic Considerations and Survey
Chapter 2 Foreign Policy Measures and Their Effects in Private Law
Section 1: Recognition and Non-recognition of Foreign States or Governments
Section 2: Trade Embargoes
Section 3: Countermeasures (Blocking Statutes)
Chapter 3 Countervailing State Measures for Asymmetric Private Relations
Section 1: The “Weaker Party” and Its Protection
Section 2: Consumer Protection
Section 3: Employment Contracts
Section 4: Conclusion
Chapter 4 Imperative Norms: Protection of Foundational Principles
Section 1: Foundational Principles – a Survey
Section 2: The Legal Framework of Unilateral Adjudication – Imperative Norms
Section 3: Respect for Foreign Imperative Norms
Section 4: Conclusion
General Conclusion
1. Social Change – From Closed to Open Societies
2. A Change of Perspective – from Public to Private Ordering
3. Multiple Forms and Expansion of Private Arrangements
4. Public Regulation
5. Paradigm Europe
List of Statutory Materials; Table of Cases; Bibliography; Index.
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