"local Data" in European Choice of Law: a Trojan Horse from Across the Atlantic?

• Publication year: 2016
• Citation: Vol. 44 No. 2

"Local Data" in European Choice of Law: A Trojan Horse From Across the Atlantic?

T.W. Dornis^*

Table of Contents

I. Introduction...............................................................................306

II. The Status Quo...........................................................................309

A. The Eternal Struggle: Conflicts vs. Substantive Justice...........309
B. Issue-by-Issue Analysis vs. Lex Causae Universalism.............310
C. The Contortion of Current Doctrine........................................313

1. From Bootstrap to Conundrum: Blind Trust in Party Expectations......................................................................313
2. A Terminological Masquerade: "Taking Account of" vs. Application ................................................................... 319

III. Reconceptualization.................................................................320

A. The Interplay of Tort Policies and Party Expectations............321
B. Caveat: The Vertical Inseparability of Policies.......................324
C. A Horizontally-Layered Model of Liability Rules....................325

1. Stratification......................................................................326
2. Categorization...................................................................328

D. From Norm Categories to Party Expectations......................... 331

1. Transformation .................................................................. 331
2. Solutions for the Contested Scenarios ............................... 333

IV. Summary and Outlook..............................................................336

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I. Introduction

A transatlantic dichotomy runs through conflicts law. The difference between the European and American approaches to "justice" in the resolution of international private law cases has been discussed extensively.¹ While this divide has grown smaller throughout the twentieth century, differences still abound. One of these differences has been handled more pragmatically than doctrinally: the consideration of "local data." In European doctrine in particular, this issue still provides a cause for debate.

Where does local data come from? The concept of "datum" was first introduced by Brainerd Currie in 1958,² and was further developed less than a decade later by Albert Ehrenzweig in his theory of local and moral data.³ For moral data, application of the lex fori (the law of the forum) is mandatory, notwithstanding the existence of foreign elements that would otherwise suggest the application of foreign law.⁴ These are cases where justice or equity require a reliance on the law of the forum—hence, moral datum.⁵ Local data calls for precisely the opposite, it provides for an "automatic reference to foreign rules."⁶ There is no rejection of foreign law; on the contrary, foreign law is openly admitted. In this sense, local data mainly concerns local rules of administration and security with regard to individual activities.⁷ Under the Rome II Regulation, these norms are called "rules of safety and conduct."⁸ In the United States, a codified version of

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choice of law with an express rule on "standards of conduct and safety" exists in the Louisiana Civil Code.⁹ At the international level, earlier examples can be found in the Hague Conventions on the Law Applicable to Traffic Accidents (1971)¹⁰ and on the Law Applicable to Products Liability (1973).¹¹

What is the theory about? Whenever the lex causae (the law determined by choice-of-law rules) is not the law of the place of conduct, the question arises of whether to give consideration to rules of safety and conduct. This is the case if conduct and injury diverge and the law at the place of injury (lex loci damni) applies. It may also be the case if the law of the parties' common domicile or common residence jurisdiction (lex domicilii communis) or a law determined under an escape clause is applied.¹² An oftenunciated hypothetical situation is a traffic accident between two French tourists in England. While the French lex domicilii communis may be applied with respect to the liability of the tortfeasor, the English rule of driving on the left side of the street—hence, "local data"—provides for the standard of conduct. The rationale is as simple as it is convincing: consideration of this rule is mandatory when assessing the tortfeasor's negligence at the time and place of accident causation. The tortfeasor cannot claim that he was acting in accordance with French traffic laws while driving his car in England.

What is the problem? At first glance, there seems to be no room for debate. In fact, the consideration of local data is often described as a matter

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of logical necessity.¹³ At least on paper, there is agreement that considering local data also accommodates lawmakers' interest in controlling local socioeconomic transacting.¹⁴ This agreement, however, does not signal a change of direction in European doctrine, which is still formal and hardly policy oriented. As we will see, local data is at the center of a doctrinal battle between proponents of traditional jurisdiction selection and those who advocate for a more content-oriented choice of law.

A deeper analysis requires exploring a number of aspects: first, we must shed some light on the actual status of European choice-of-law doctrine vis-à-vis the U.S. approach. This shows that giving regard to substantive policies and underlying state interests is no longer completely anathema to continental choice of law. Decision-makers are no longer confined to considering aspects of conflicts justice alone. Yet substantive policy is still neglected when it comes to implementing the theory of local data in practice. Second, as a doctrinal reconceptualization reveals, a reconsideration of party expectations and a change of directions with respect to substantive law policies and state interests will play out beneficially in cases where conventional European wisdom cannot provide for a solution. In this regard, the consideration of local data may truly open the door to substantivist wisdom from across the Atlantic. Finally, looking at the bigger picture, we can conclude that local data is a field where different legal orders converge. What Ehrenzweig once termed a terra incognita, and what has since remained a stepchild of European doctrine, may actually serve as a condensation point for a more modernized and globalized conflicts law.

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II. The Status Quo

Differences between the traditional European doctrine, which still principally tends to disregard underlying policy considerations, and the once-deemed revolutionary U.S. approach, which embodies a trend of considering such interests in lieu of applying formalistic schemata, have been debated extensively. Much ink has been spilled on the issue of how, if at all, to give regard to substantive policies and state interests beyond the Savignian paradigm of a mostly private international law. Over the decades, modern European choice of law may have become more policy oriented. Yet many aspects remain untouched by this trend of modernization. One such aspect is the European doctrine's aversion to case-by-case analyses and, accordingly, to dépeçage.

A. The Eternal Struggle: Conflicts vs. Substantive Justice

The divergence between the European and U.S. approaches is still fittingly emblematized by the theories put forth by two key scholars: Gerhard Kegel and David Cavers. In defense of the European tradition, Kegel advocated a disregard for the content of the relevant laws when determining the applicable regime. Choice of law, he explained, aims to find not the "objectively best law" but the "spatially best law." Accordingly, "conflicts justice takes functional precedence over substantive justice."¹⁵ In defense of U.S. doctrine, Cavers concluded that in conflicts law, "[t]he court is not idly choosing a law; it is determining a controversy. How can it choose wisely without considering how that choice will affect that controversy?"¹⁶

Of course, this battle has lost much of its fervor and, today, things are not as black and white as they used to be. Europe has, at least in part, forsworn the once strictly-followed concept of content-neutral jurisdiction selection. Tort conflicts is representative: a number of provisions of the Rome II Regulation actually give regard to substance, as can be seen in the instrument's consumer-protection impulse in product-liability conflicts, the

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multiple policies accommodated under the rules for international unfair competition conflicts, the express aim of international environmental protection, and the rigid regulation of choice-of-law clauses.¹⁷ Yet with regard to a court's decision making—that is, the actual application of choice-of-law rules—an express content-oriented determination of the applicable law or an ad hoc modification of choice-of-law results will seldom occur. In this regard, the technical and structural formalism has survived all transformative developments toward more substantivist conflicts doctrine.

One might even say that European conflicts law still reflects classical nineteenth-century methodology based on the paradigm of private law substitutability. Carl Friedrich von Savigny, the founder of the discipline in Europe, considered private law a largely "apolitical" affair, and sought only to regulate private relations among free individuals. Accordingly, the state had no direct involvement.¹⁸ Until today, this has been the basis of the assumption that the private laws of different states are almost freely substitutable. And until today, this substitution has been all-encompassing. In other words, when a certain law is found applicable, rather than governing single elements of the case it is expected to govern all issues.

It is this remnant of traditional doctrine that causes trouble in a number of ways, particularly when the lex causae is different from the local...