Comparing Interstate and European Conflict of Laws from a Constitutional Perspective: Can the United States Inspire the European Union?

Abstract

Abstract The still-recent process of Europeanization and constitutionalization of conflict of laws in the European Union can benefit in some respects from a comparison, from a constitutional perspective, with interstate conflict of laws in the United States. The quasi-absence of federal choice-of-law rules, the Supreme Court’s approach of minimal constitutional constraints to choice of law and the focus of U.S. interstate conflicts law on substantive policies and interests stand out as three major differences from the development of EU conflict of laws. Learning from the American experience and taking into account the case law of the Court of Justice of the European Union and the requirements of subsidiarity and proportionality, the EU legislature should be open, in particularly sensitive areas, to the recognition method as an alternative to the unification of choice-of-law rules. Neither the Supreme Court’s minimal constraints doctrine nor its prioritization of individual-fairness concerns over federal interests should be followed in Europe. Although it recognizes that conflict of laws can contribute in different ways to the European general interest, the Treaty of Lisbon has set up a rather disappointing framework to that effect. Amendments and clarifications are needed to enable EU conflict of laws to fulfill its ambitions and really contribute to the EU’s quasi-federal integration process.