Marzal and Pavlakos on Relations-First Approach to Choice of Law

Toni Marzal and George Pavlakos (both from University of Glasgow) posted recently on SSRN their article titled A Relations-First Approach to Choice of Law.

The article forms part of the forthcoming volume Philosophical Foundations of Private International Law edited by Roxana Banu, Michael Green and Ralf Michaels to be published by Oxford University Press. The volume is an outcome of an interdisciplinary project carried under the same title. As underlined by Roxana Banu:

PIL situates virtually every legal topic in a different, transnational and pluralistic context. It is therefore hard to comprehend why a philosophical inquiry has thus been far lacking. We seek to penetrate the long-standing isolation existing between the two disciplines and investigate the many opportunities for mutual enrichment.

The abstract of the article reads as follows:

The question of applicable law remains central in the doctrine and practice of private international law (PIL), raising a host of disagreements around the criteria that govern its determination. Paradoxically, this question is commonly approached through a positivist lens, whilst at the same time being guided by a commitment to individual autonomy. In this paper we propose, against mainstream practice, to frame the issue of applicable law as involving a series of questions about relational morality, which ought to be answered independently of any established legal order, and from a concern for the common good. We will proceed in four parts. First, we will demonstrate that a purely positivist understanding fails to properly account for today’s practice, given its propensity to exclude normative considerations as irrelevant to the determination of legal facts, whilst at the same time resorting to such considerations under the cover of hopelessly circular reasoning – a failure that is particularly manifest in the context of PIL. Second, we will show how current PIL tends to accomplish this operation by smuggling into legal reasoning a pre-institutional notion of individual autonomy, which implicitly guides the determination of applicable law, and is divorced from any considerations of relational morality (as well as from ideals of the common good that are left to the ex-post intervention of institutionalised legal orders). Third, we emphasise the independent value of addressing the question of legal relations in pre-institutional terms and propose a fresh way of understanding the legality of such relations among private parties, on the basis of a revised reading of Savigny and Kantian right, as key to the determination of the applicable law. Finally, we explore the downstream implications of our relations-first approach, by considering the topical question of applicable law to claims against parent/buyer companies for the harm caused by their subsidiaries/providers overseas.