1. Recalling its “vested rights” dogmatic origins, the traditional choice of law system is today largely described as a body of jurisdiction-selecting rules. The dogmatic and Utopian character of this traditional reliance on a sort of “super law” assessing “legislative jurisdictions” has been particularly shown by Ehrenzweig (Cf. Ehrenzweig, , A Treatise on the Conflict of Laws (1962), pp. 3–15Google Scholar; Private International Law (General Part, 1967, pp. 47–57).Google Scholar Its “jurisdiction-selecting” nature has been critically evidenced by Cavers:

“(A) ‘jurisdiction-selecting’ rule … is a rule indicating the source of the law to be applied without regard to the law's content … The ‘jurisdiction-selecting’ rule makes a state the object of choice; in theory it is only after the rule has selected the governing state by reference to the ‘contact’ prescribed in the rule that the court ascertains the content of the state's law.” (Cf. Cavers, , The Choice-of-Law Process (1965), p. 9Google Scholar and note 24; A Critique of the Choice-of-Law Problem, 47 Harv.L.Rev. (1933), p. 194).Google Scholar

2. Although the “functional” label has been more specifically applied to certain scholarly approaches (VON MEHREN & TRAUTMAN; WEINTRAUB), this terminology can be used generally to cover all the modern conceptions that, rejecting the mechanical application of blind jurisdiction-selecting rules, seek to provide the Courts with an enlightened method of analysis enabling them to operate the solution of actual conflicts in accordance with the policies of the laws under consideration.

3. Cf. Kegel, , The Crisis of Conflicts of LawsGoogle Scholar, Recueil des Cours de l'Académie de Droit International [hereafter R.C.A.D.I.], 1961-II-t. 112, pp. 95–236; Evrigenis, , Tendances doctrinales actuelles en droit international privé, R.C.A.D.I. 1966-II-t. 118, pp. 313–433Google Scholar; Van Hecke, , Principes et méthodes de solution des conflits de lois, R.C.A.D.I. 1969-I-t. 126, pp. 433–434Google Scholar; Miaja de la Mueea, Les principes directeurs des regies de competence territoriale des tribunaux internes en matière de litiges comportant un element international, R.C.A.D.I. 1972-I-t. 135, p. 63; Loussouarn, , Cours Général de droit international privé, R.C.A.D.I. 1973-II-139, pp. 338, 342–368.Google Scholar

However, criticism to the functional analysis approach is not unanimous among European scholars. In effect, as Professor Juenger has pointed out recently, the situation today seems to be “a split of opinion”: “While established academicians tend to be skeptical, there is a “pro-American” faction composed primarily of younger authors with varying degrees of exposure to American legal thinking. They are not uncritical, but their attitude is one of openness to new approaches, one which welcomes experimentation … In any event, it seems fair to say that the mechanistic nineteenth centure doctrine which still pervades European conflicts thinking is losing ground: a confrontation between traditionalists and innovators is brewing”. Juenger, , Trends in European Conflicts Law, 60 Cornell L. Rev. (1975), pp. 971–972.Google Scholar

4. In fact, according to EHRENZWEIG in 1974 only the following jurisdictions had withstood the “revolution” seemingly determined to await creation of a “satisfactory substitute” for traditional rules: Arkansas, Connecticut, Delaware, Florida, Georgia, Kansas, Maryland, Massachusetts, Michigan, Missouri, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee and Texas, Cf. Ehrenzweig, , Conflicts in a Nutshell, 3rd Edition, 1974, p. 36.Google Scholar

5. Published in 1933 in the Harvard Law Review. Vide supra, note 1.

6. Cf. American Law Institute, Restatement of the Law, Conflicts of Laws (1934).Google Scholar Referring to its old-fashioned nature, EHRENZWEIG affirmed that the First Restatement “became responsible for implanting in American law that neo-statutist (“vested rights”) dogma which, by then, had long been discarded in the countries of its origin.” Ehrenzweig, , Conflicts in a Nutshell, cit., p. 21.Google Scholar

7. In fact, since 1960 or thereabouts, the basic approach of the Restatement Second both in contract and in tort choice of law has been to locate the state with the “most significant relationship” to the matter under consideration. As this approach was received with general criticism by American doctrine, some minor modifications were introduced as the Restatement progressed to its various drafts. However, the basic doctrine of the “most significant relationship” remained unchanged and is today at the core of the Restatement Second final version of 1971, which “conciliates” a policy-oriented approach (Introduction, paragraph 6) with jurisdiction-selecting rules (Chapter 8: Contracts, paragraphs 186, 187 and 188; Chapter 7: Wrongs, Topic 1 Torts, paragraph 145). Vide American Law Institute: Restatement of the Law Second, Conflict of Laws 2d, 1971, vol. 1, part. 6 (pp. 10–17), (pp. 414–429)Google Scholar and paragraphs 186, 187 and 188 (pp. 558–586).

8. 308 N.Y. 155; 124 N.E. 2nd 99 (1954).

9. In fact, as the Court of Appeals explained:

“Both of the Courts below, concluding that New York law was to be applied, held that under such law plaintiffs' commencement of the English action and the award of temporary alimony constituted a recission and repudiation of the separation agreement, requiring dismissal of the complaint”. Ibid., p. 101.

10. For, as the Court remarked:

“In point of fact, the English lawyers, whose affidavits have been submitted by plaintiff, unequivocally opine that the institution of a separation suit and the award of alimony pendente lite did not, under the law of England, constitute a repudiation of the separation agreement or bar the present action to recover amounts under it.” Ibid., p. 103, note 2.

11. Ibid., pp. 101–102.

12. Ibid., p. 102.

13. Ibid., p. 103.

14. In effect, the Auten judgment pointed out that the “center of gravity” or “grouping of contacts” theory, “first employed to rationalize the results achieved by the Courts in decided cases, see Barber Co. v. Hughes, 223 Ind. 570, 586; 63 N.E. 2d 417,” had also been applied by “other decisions, including the most recent one in this court…” Ibid., p. 101.

15. Cramton, , and Currie, D., Conflict of Laws: Cases-Comments-Questions, 1968, p. 201.Google Scholar

16. According to CAVERS, the main vice of the “most significant relationship” doctrine was (and still is) that it selected the governing jurisdiction without examining the content of the competing laws. Cf. Cavers, , Re-restating the Conflict of Laws: The Chapter on Contracts in XXth, Century Comparative and Conflicts Law 349 (1961).Google ScholarVide, also, Weintraub, , The Contracts Proposals of the Second Restatement of the Conflicts of Laws – A Critique, 46 Iowa L. Rev. 713 (1961)Google Scholar; Ehrenzweig, , The Second Conflicts Restatement: A Last Appeal for its Withdrawal, 113 U.Penn L. Rev. 1230 (1965)CrossRefGoogle Scholar; Sedler, , The Contract Provisions of the Restatement (Second): An Analysis and a Critique, 72 Colum. L.Rev. 279 (1972)CrossRefGoogle Scholar; Weintraub, , Commentary on the Conflict of Laws (1971), pp. 275–276.Google Scholar But for a favorable appraisal, see Morris, J.H.C., Law and Reason Triumphant – or How not to Review a Restatement, 21 Am.J.Comp.L. 322 (1973).CrossRefGoogle Scholar

17. Namely, to the presumed intention of the parties and to the rule that “matters of performance and breach (of contracts) are governed by the law of the place of performance.” 124 N.E. 2d, p. 103.

18. Ibid., p. 102.

19. Referring to a similar case, Professor SEDLER had said in that respect: “(i)f anything, the most significant relationship test was a hinderance, an unhelpful ritual that had to be performed before the court could proceed to analyze the problem meaningfully in terms of interest and fairness”, Sedler, , The Contracts Provisions of the Restatement, cit., 72 Colum. L. Rev. 279, 314 (1972).CrossRefGoogle Scholar

20. 12 N.Y. 2d 473; 191 N.E. 2d 279; 240 N. Y.S. 2d 743 (1963).

21. Ibid., p. 746.

22. Ibid., p. 747.

23. Ibid., pp. 747, 748, 749.

24. Ibid., pp. 750–751.

25. Ibid., pp. 751–752.

26. The image is borrowed from KAY, Conflicts of Laws: Supplementary Cases and Materials, 2d ed., (1975), p. 58Google Scholar, (publication prepared for inclusion in CRAMTON, D. CURRIE and KAY, Conflict of Laws: Cases-Comments-Questions).

27. See Kay, , op. cit., p. 58Google Scholar and following. See also, Cavers, , Cheatham, , Currie, B., Ehrenzweig, , Leflar, , and Reese, , Comments on Babcok v. Jackson, A Recent Development in Conflict of Laws. 63 Colum.L.Rev. (1963), pp. 1212–1257.CrossRefGoogle Scholar

28. See, for instance, Eek, , Babcock in Sweden, 54 Cal.Law Rev. (1966), pp. 1575–1583.CrossRefGoogle Scholar

29. In effect, the Court's purported intention of comparing “the relative ‘contacts’ and ‘interests’ of New York and Ontario in this litigation” was only unevenly achieved by balancing New York's cumulative “contacts” against Ontario's defective “interests”.

The contacts making “the concern of New York unquestionably the greater and more direct” were carefully listed (Cf. 240 N.Y.S. 2nd. (1963), p. 750) but New York's concrete interests were not specifically detailed beyond an abstract reference to its recovery-allowing policy. In contrast, if Ontario's “minimal” and “adventitious” contacts were only the object of some episodic references, its lack of conceivable “interest” was spelled out thoroughly by analyzing the underlying object of the recovery-denying policy of its guest statute and its apparent inoperativity under the circumstances of the case (Cf. ibid., p. 750).

30. Cf. ibid., p. 751, This “weighing” of competing contacts and interests was precisely that which gained for the cause of the judgment the support of the 2nd Restatement Reporter, Professor Reese:

“Opinions that give an explicit answer to the question posed in Babcock, namely, what state ‘has the strongest interest’ in the particular issue before the court, will provide-a sound basis for the future development of satisfactory rules of choice of law.” REESE, W., 63 Colum. cit., p. 1253.

31. Referring to this aspect of the judgment, EHRENZWEIG affirmed that: “If divorced from a policy analysis, these formulas (‘significant relationship’; ‘center of gravity’; ‘grouping of contacts’; ‘proper law’) invite a mechanical counting of contacts.” EHRENZWEIG, 63 Colum., cit., p. 1244.

32. Currie, B., 63 Colum. cit., p. 1235.Google Scholar Thus, the author adds, “the question whether a particular ‘contact’ is significant is meaningless unless significance is judged in terms of the policies and interests of the states involved. Once this is clear (and Babcock makes it clear) we are left simply with the tools of construction and interpretation. When, with the aid of those tools, we find there is no conflict of interests, as in Babcock, the proper result is clear: the law of the only interested state is applied. When, by the same process, we find that the interests of two or more states are in conflict, a court has no means of determining which state has “the most significant relationship.” Ibid., p. 1235. For the aftermath of Babcock in New York, vide, Kay, , Op. cit., pp. 58–81.Google ScholarVide also: Terzian, , The Aftermath of Babcock, 54 Cal. Law Rev. (1966), pp. 1301–1330.CrossRefGoogle Scholar

33. Hill, , Governmental Interest and the Conflict of Laws: A Reply to Professor Currie, 27 U. Chi. L. Rev. (1960), p. 474 and note 55.CrossRefGoogle Scholar

34. Cf. Reese, and Rosenberg, , Conflict of Laws: Cases and Materials, 1971, p. 523.Google ScholarVide also, Hill, , op. cit., p. 474.Google Scholar

35. Cf. Ehrenzweig, , Conflicts in a Nutshell, cit.Google Scholar, where CURRIE was cited as “probably the most widely discussed” among the leaders of the “revolution.” (p. 28 in connection with p. 25). However, in a former book published by EHRENZWEIG, leadership of “establishment”, “revolution” and “counter-revolution” appears to be somehow altered. Cf. Ehrenzweig, , Private International Law, cit., pp. 57–69.Google Scholar

36. Brainerd CURRIE originally set out his theories in his article: Notes on Methods and Objectives in the Conflict of Laws, 1959 Duke Law Review, pp. 171–181.Google Scholar He subsequently introduced further developments in a number of other articles, some of which are collected in his Selected Essays on the Conflict of Laws, 1963.Google Scholar The following is a succinct statement of his views on the choice of law question, prepared by CURRIE himself in 1964:

1. When a court is asked to apply the law of a foreign state different from the law of the forum, it should inquire into the policies expressed in the respective laws, and into the circumstances in which it is reasonable for the respective states to assert an interest in the application of those policies. In making these determinations the court should employ the ordinary processes of construction and interpretation.

2. If the court finds that one state has an interest in the application of its policy in the circumstances of the case and the other has none, it should apply the law of the only interested state.

3. If the court finds an apparent conflict between the interests of the two states it should reconsider. A more moderate and restrained interpretation of the policy or interest of one state or the other may avoid conflict.

4. If, upon reconsideration, the court finds that a conflict between the legitimate interest of the two states is unavoidable, it should apply the law of the forum.

5. If the forum is disinterested, but an unavoidable conflict exists between the interests of two other states, and the court cannot with justice decline to adjudicate the case, it should apply the law of the forum, at least if that law corresponds with the law of one of the other states. Alternatively, the court might decide the case by a candid exercise of legislative descretion, resolving the conflict as it believes it would be resolved by a supreme legislative body having power to determine which interest should be required to yield.

6. The conflict of interest between states will result in different dispositions of the same problem, depending on where the action is brought. If with respect to a particular problem this appears seriously to infringe a strong national interest in uniformity of decision, the court should not attempt to improvise a solution sacrificing the legitimate interest of its own state, but should leave to Congress, exercising its powers under the full faith and credit clause, the determination of which interest shall be required to yield.

Cf. Reese, and Rosenberg, , op. cit., p. 523–524.Google Scholar

37. Let us warn anyway, in this respect, of the fact that what CURRIE called and characterized “false problems” have been subsequently rendered in the most diverse terminology (Le., “false conflicts”, “spurious conflicts”, “pseudo conflicts”, “superficial conflicts”) and – what is worse – have been also characterized in the most diverse (and unorthodox) ways. See Westen, , False Conflicts, 55 Cal. Law Review (1967), pp. 74–122.CrossRefGoogle Scholar

38. A forum is said to be “disinterested” whenever it is called upon to decide a case in which, although properly exercising jurisdiction – i.e., by virtue of the “transient rule” in actions in personam –, it has not in fact any specific concern with the outcome of the particular litigation. In that case, if the disinterested forum finds that only another foreign state has a definite interest in having its law applied, it will be then faced with a “false problem” to be resolved by the application of the law of the only interested state. However, if two other states appear to be interested, the disinterested forum might then be confronted either with a “false conflict” (i.e., one that can be avoided by a moderate definition of the policy or interest of one state or the other) or with a genuine “true conflict” (i.e., if the conflict of interest between the two other states persists despite efforts to avoid it by moderate definition of policies or interest). The situation of a “disinterested third state” was studied by CURRIE who considered it as a “delicate” and “refractory” problem, although extremely rare in practice (He opined to have encountered such a case only once – Dimon v. Dimon 40 Cal 2d 516;254 P. 2d 528 (1953) – but some later cases – i.e., Reich v. Purcell (1967) infra, notes 69 and 73 – prove that a disinterested third state might not actually be such a ratity.) Anyway, in CURRIE's opinion, “a recourt presented with a conflict between the laws of two other states, no interest of the forum being apparent, should (either) dismiss on forum non-convening grounds … (or avoid) the problem by construction” (i.e., construing the respective interests of the concerned states moderately in such a way as to avoid conflict, thus applying the law of the only remaining interested state). However, if an unavoidable conflict should subsist, CURRIE's answer becomes evasive. He could “contemplate with at least equanimity” a sort of legislative judgment in which – placing itself in the position of Congress – the Court would apply the “more enligtened and humane” rule of decision. But, he could also foresee that “The Court reasonably would apply the law of the forum.” “I do not feel impelled – CURRIE finally said – to commit myself irrevocably to either approach at this time. If I were a judge, I should prefer application of the law of the forum to the bolder technique. But, then, I am a pretty old-fashioned fellow”. Currie, , The Disinterested Third State, 28 Law and Contemp. Problems (1963) pp. 764–780.CrossRefGoogle Scholar See also, Westen, False Conflicts, cit., pp. 101–105.Google Scholar

39. 345 U.S. 571 (1953).

40. The Jones Act provision upon which Larsen based his claim reads as follows: “Any seamen who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personel injury to railway employees shall apply …” 46 U.S.C., par. 688.

41. 345 U.S. (1953), pp. 576–577.

42. Ibid., p. 578–579.

43. Ibid., p. 578.

44. Ibid., p. 581.

45. In effect, by finding that the Jones Act did not provide for its own universal application, the Court rejected confrontation with a formulated statutory rule directing the application of the forum law. Such an absent cogent rule – that could have been defined as “forum law by choice” in EHRENZWEIG-like terminology – would have been very similar to what the European continental doctrine has called “peremptory norms” (Eek, , Peremptory Norms and Private International law, R.C.A.D.I. 1973-II-t. 139, pp. 1–74Google Scholar), “lois d'application immédiate” (Francescakis, , Quelques précisions sur les lois d'application immédiate et leurs rapports avec les règles de conflits de loisGoogle Scholar, Revue critique de droit international privé, 1966, p. 1 and foil.) or “regies matérielles” (Batiffol, , Pluralisme des méthodes en droit international privé, R.C.A.D.I. 1973-II-t. 139, pp. 107Google Scholar and foil.; MIAJA de la MUELA, Las normas materiales de derecho internacional privado Revista Española de Derecho Internacional 1963, pp. 245 and foil.).

46. 345 U.S. (1953), p. 583.

47. Ibid., p. 584.

48. Ibid., pp. 586–587.

49. Ibid., p. 589.

50. Ibid., pp. 592–593.

51. This case was decided only in 1953(!).

52. Cramton, and Currie, D.. op. cit., p. 254.Google Scholar

53. Westen, , op. cit., p. 90.Google Scholar

54. Such as – in this same field – Romero v. International Terminal Operating Co., 358 U.S. 354 (1959)Google Scholar (treated by Currie, B., The Silver Oar and All That: A Study of the Romero Case 27 U. Chi. L. Rev. (1959) pp. 1–78CrossRefGoogle Scholar); McCullock v. Sociedad National de Marineros, 372 U.S. 10, 21 (1963)Google Scholar (examined by Currie, D., Flags of Convenience, American Labor and the Conflicts of Laws, The Supreme Court Review 1963, pp. 34–100).Google Scholar

55. Currie, D., op.cit., p. 59.Google Scholar

56. Ibid., p. 60.

57. This point, thoroughly made by D. CURRIE (op. cit., p. 59), must be accepted. But not – as we will see infra, note 151 – the author's rejection of the “law of nations” as a canon of statutory construction (Cf. ibid., p. 57).

58. Whether or not the case actually presented a blatant “false problem”, or simply an “apparent conflict” to be avoided through restrained construction, does not need to be discussed in depth here, for – as CURRIE himself has written – those “classes of cases are a continuum without clear internal boundaries” (Cf. Currie, B., The Disinterested Third State, cit., p. 764).Google Scholar

59. Cf. 345 U.S. (1953) at pp. 578–579 (Vide supra, p. 16).

60. As opposed to a “disinterested forum” (vide supra, p. 15 and note 38), a forum would be said to be “interested” whenever – beyond merely exercising jurisdiction – it could also assert a definite concern with the outcome of the particular litigation. And yet, to speak about “false conflicts” in “interested forum” is only apparently paradoxical for the said interested forum, which might in fact be confronted with one of these three possible situations: (1) “False problem” – if no other state is interested; (2) “False conflict” – if (other state being also interested) conflict is avoided by a moderate definition of the policy or interests of one state or the other; (3) “true conflict” – if (in the latter situation) conflict of interests persists despite efforts to avoid it by moderate definition of policies and interests.

61. 18 N.Y. 2nd 289; 221 N.E. 2nd 380; 274 N.Y.S. 2nd 591 (1966).

62. Cf. supra, p. 10.

63. 16 N.Y. 2nd 120; 209 N.E. 2nd 792; 262 N.Y.S. 2nd 463 (1965).

64. Cf. Kay, , op. cit., p. 66.Google Scholar

65. Ibid., pp. 592 and 593.

66. Cf. Kay, , op. cit., p. 67.Google Scholar

67. 274 N.Y.S. 2nd, p. 595.

68. 11 Cal. 3rd. 574, 144 Cal Rptr. 106; 522 P. 2nd 666 (1974).

69. Cf. 67 Cal. 2nd. 551, 63 Cal Rptr. 31, 432 P. 2nd 727 (1967). The Reich case dealt with a wrongful death action arising out of a car collision which occurred in Missouri and involved Ohio plaintiffs and California defendants. In its judgment, per Chief Justice Traynor, the California Supreme Court – after declaring that the forum was “disinterested” in applying its unlimited recovery rule “on behalf of (a California) defendant” – affirmed that Missouri had no foreseeable interest in applying its law limiting recovery “to travellers from states having no similar limitation,” thus declaring Ohio's unlimited-recovery rule applicable.

70. I.e., basically: Weintraub; Scoles; Ehrenzweig; Kay; Currie; Gorman; Trautman; Cheatham; Horowitz; Leflar; Rosenberg, and Cavers, , Comments on Reich v. Purcell, 15 UCLA Law Rev. (1967–1968), pp. 551–654.Google Scholar

71 ; 522 P. 2nd (1974), p. 669.

72. Ibid., p. 670.

73. In fact, far from using “interest analysis” to select the rule of decision more beneficial for California (as suggested by Ratner, L., Choice of Law: Interest Analysis and Cost-Contribution. 47 So. Cal. L. Rev. (1974), pp. 832–836Google Scholar), the California Supreme Court construed the different interests present in the same altruistic manner that it did on other previous occasions. Cf. Scoles, Comments on Reich v. Purcell, 15 U.C.L.A. L. Rev. (1968), pp. 567–68. Vide, also, Kay, , op. cit., pp. 193–197.Google Scholar

74. 522 P. 2nd (1974), p. 672.

75. Ibid., p. 674.

76. Supra, note 36.

77. 350 F. 2nd 468 (D.C. Cir. 1965).

78. “Under the test we are asked to apply – the Court said – the choice of law to be applied to each legal issue presented is to be made in light of the jurisdiction which has the stronger interest in the resolution of that issue”. Appellant's brief, p. 10. “Emphasis is (to be) placed … upon the law of the place which has the most significant contacts with the matter in dispute.” Id., at p. 26. “A cornerstone of this newer thinking, appellant contends, is the forum's reluctance to subordinate its policies to those of another state when its own interest in the case is real and substantial.” Ibid., p. 471.

79. Ibid., p. 473.

80. Ibid., p. 472.

81. Ibid., p. 473.

82. Ibid., p. 471.

83. Ibid., p. 473.

84. Ibid., pp. 473–474.

85. Ibid., p. 475.

86. 359 F. 2nd 855 (2nd Cir. 1966); 245 F. Supp. 819 (1965).

87. Ibid., p. 824.

88. Ibid., p. 825.

89. Ibid., p. 824.

90. Ibid., pp. 824–825.

91. Ibid., p. 825.

92. Ibid., p. 825. At the time of this judgment – later affirmed by the New York Court of Appeals – the current value of the 100,000 cruzeiros Brazilian limitation was already only “less than $ 70.”! (ibid., p. 820).

93. 31 N.Y. 2nd 121; 286 N.E. 2nd 454; 335 N.Y.S. 2nd 64 (1972).

94. Ibid., p. 66.

95. 24 N.Y. 2nd, 569, 301 N.Y.S. 2nd, 519, 249 N.E. 2nd, 294 (1969).

96. The “unprovided for” situation, in which neither involved state is interested in having its law applied (“neither state cares what happens”), was first identified and labelled by Professor Brainerd Currie while discussing a hypothetical variant of Grant v. McAuliffe (41 Cal. 2nd. 859; 264 P. 2nd 944 (1953)). Cf. Currie, , Survival of Actions: Adjudication v. Automation in the Conflict of Laws, 10 Stan. L. Rev., pp. 205–252 at p. 229CrossRefGoogle Scholar, reprinted in Selected Essays, cit., pp. 128–176 at pp. 152–153.Google Scholar Vide also, Kay, , op. cit., pp. 119–125.Google Scholar

97. 335 N.Y.S. 2nd (1972), pp. 67–68. But – in terms of a genuine interest analysis – this statement is highly questionable. For if, in the first place, Judge Fuld's assumption that application of New York law would affront the public policy of Ontario is far from self-evident, his willingness to apply New York law in favour of New York plaintiffs, but not in favour of Ontario plaintiffs, appears also very much as an exercise of improper discrimination (vide in this respect infra, note 137).

98. For instance, the above-mentioned argument of improper discrimination or the fact that the insurance policy, issued in New York, covered liability regardless of the place of the accident.

99. 335 N.Y.S. 2nd (1972), p. 68. However, in a case such as this, Currie's teaching would have led to the application of the forum law simply on the basis that there is no good purpose in displacing it with the foreign law “since the result is a matter of entire indifference in terms of the policies of both states”. Cf. Currie, B., Selected Essays, cit.,pp. 230–232 at p. 232.Google Scholar Professor Sedler has reached the same conclusion through a more sophisticated, but not more convincing, construction, that Professor Kay (op. cit., p. 124) has rephrased as “negative” interest analysis. By this approach, Sedler reached the conclusion that “… generally in an accident case where the defendant is from a recovery state, he should be held liable irrespective of where the plaintiff resides or the accident occurs.” Sedler, Interstate Accidents and the Unprovided for Case: Reflections on Neumeier v. Kuehner. (in Symposium; Neumeier v. Kuehner: A Conflicts Conflict) 1 Hofstra L. Rev. at p. 138. Vide ibid., other articles by Twersky, Baade; Shapira and King. Vide also Kay, , op. cit., pp. 119–155.Google Scholar

100. Here are Judge Fuld's three rules:

“1. When the guest-passenger and the host-driver are domiciled in the same state, and the car is there registered, the law of that state should control and determine the standard of care which the host owes to his guest.

2. When the driver's conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim's domicile. Conversely, when the guest was injured in the state of his own domicile and its law permits recovery, the driver who has come into that state should not – in the absence of special circumstances – be permitted to interpose the law of his state as a defense.

3. In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants. (Cf. Restatement 2nd, Conflict of Laws, P.O.D. pt. 11, paragraphs 146, 159 [later adopted and promulgated May 23, 1969].)” 335 N.Y.S. 2nd, p. 70.

101. 335 N.Y.S. 2nd (1972), pp. 70–71.

102. Cf. ibid., p. 71.

103. “New entrant in the ideological derby” (Cf. Reese, and Rosenberg, , op. cit., p. 526Google Scholar), Professor R. Leflar first set out his theories in two articles: Choice-Influencing Considerations in the Conflicts Law, 41 N. Y. U. L. Rev. (1966), pp. 267–285Google Scholar; and More on Choice-Influencing Considerations, 54 Cal. L. Rev. (1966), pp. 1584–1598.Google Scholar These “considerations” – offered not as rules of thumb but as values that will guide the courts – are: (1) predictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum's governmental interests; and (5) application of the better rule of law. Cf. Leflar, , American Conflicts Law, 1968, p. 259.Google Scholar

104. Cf. Ehrenzweig, , Conflicts in a Nutshell, cit., p. 33.Google ScholarPrivate Int. Law, cit., p. 69.Google Scholar

105. Reese, and Rosenberg, , op. cit., p. 527.Google Scholar

106. – Minn –, 203 N.W. 2nd (1973), 408.

107. Cf. ibid., pp. 410–411.

108. Cf. ibid., pp. 411–412.

109. Cf. ibid., pp. 412–413.

110. Ibid., p. 413.

111. 47 Misc. 2nd 992; 263 N.Y.S. 2nd 647 (1965), affirmed 26 A.D. 2nd 595; 270 N.Y.S. 2nd 552 (1966). The Kell case, which never reached the New York Court of Appeals, was a perfect mirror image of Babcock on the facts: Ontario motorist, with a car registered there, set out on a short holiday trip to New York, planning to return home to Ontario. In New York the guestpassenger was injured when the car left the highway and struck a bridge. Despite the Ontario guest statute, the Court at special term declared that the guest should recover – on the view that Babcock had not intended to change the New York law that a guest has a cause of action for personal injuries sustained in an accident in New York. Commenting on this case, Professor Trautman concluded that Kell presented a true conflict which should be resolved by application of New York law (Trautman, , Kell v. Henderson: A Comment, 67 Colum. L. Rev. (1967) pp. 465–467CrossRefGoogle Scholar), but his arguments trying to elaborate New York's interests are not totally convincing. For a critical view of this decision, vide: Rosenberg, , Kell v. Henderson: An Opinion for the New York Court of Appeals, 67 Colum. L. Rev. (1967), pp. 459–464.CrossRefGoogle ScholarVide also Kay, , op. cit., pp. 156–162.Google Scholar

112. Cf. Leflar, , More on Choice-Influencing Considerations, 54 Cal. L. Rev. (1966), pp. 1593–1595.CrossRefGoogle Scholar In an opinionated way, the judgment also pointed out that “Other writers, in commenting on Kell v. Henderson … come to the same conclusion. Rosenberg, & Trautman, , Two Views on Kell v. HendersonGoogle Scholar 67 Cal. L. Rev. 459” (203 N.E. 2nd, p. 414, note 2) and extensively referred to Ehrenzweig's purported “strong support for the better rule of law concept” in his “False Conflicts” and the “Better Rule”: Threat and Promise in Multistate Tort Law, 53 Va. L. Rev. 847, 848 (ibid., pp. 414–415).

113. Namely, Conklin v. Homer, 38 Wis. 2nd 468; 157 N.W. 2nd 579 (1968).

114. Ibid, p. 416. In effect – the Court said – in the Conklin case “the litigants were all resident of the State of Illinois; the automobile in question was licensed and garaged in Illinois, the trip originated in Illinois with the intent and purpose to return to Illinois. Illinois has a guest statute; Wisconsin does not … The Wisconsin Court, premising its choice of law methodology on the factors initially propagated by Professor Leflar and Chief Justice Kenison of New Hampshire … (applied) the common-law liability rule of the forum and place of the accident…”, ibid., p. 416.

115. Ibid., pp. 416–417.

116. The champion of this plea has certainly been Professor Ehrenzweig who has always vigorously defended the need for a different treatment for international conflicts. Cf. Ehrenzweig, , Interstate and International Conflicts Law: A Plea for Segregation, 41 Minnesota L. Rev. (1957), pp. 717–729.Google Scholar He perseveringly maintained this opinion throughout his life: “In any event, the difference between international and interstate conflicts remains a crucial one, although its impact may, in unchartered areas, exhaust itself in different evolutions of policies (‘Rechtszwecke’),” Ehrenzweig, , Private Int. Law, cit., p. 21.Google Scholar

117. In opposition to the almost solitary effort of Ehrenzweig, a majority of authors has joined the old tradition of Livermore, Story and Beale and adhered to the common band of the “unitarians.” Cf. Dubois, , The Significance in Conflicts of Laws of the Distinction between State and International Transactions, 17 Minn. L. Rev. (1933), pp. 361–380Google Scholar; Katzenbach, , Conflicts on an ‘Unruly Horse’: Reciprocal Claims and Tolerances in Interstate and International Law, 65 Yale L. Journal (1955), pp. 1087CrossRefGoogle Scholar and foll.; Scoles, , Interstate and International Distinctions in Conflict of Laws in the United States, 54 Cal. L. Rev. (1966), pp. 1559–1623CrossRefGoogle Scholar; Leflar, , American Conflicts Law, cit., p. 10Google Scholar; Restatement 2d. cit., vol. I, par. 10, pp. 38–40.

118. Ehrenzweig, , Private Int. Law, cit., p. 20.Google Scholar

119. Restatement 2d. cit., p. 38. However, the Restatement explicitly recognized that: “There may … be factors in a particular international case which call for a result different from that which would be reached in an interstate case.” Ibid., p. 38.

120. In that respect, vide infra, p. 39.Google Scholar

121. In effect if – as Leflar says – “constitutional requirements are satisfied by a widening variety of factual contacts with the state whose law is chosen as governing” (Leflar, , Constitutional Limits on Free Choice of Law, 28 Law and Contemp. Problems (1963), p. 706)CrossRefGoogle Scholar, these requirements would be a fortiori satisfied whenever the chosen applicable law would be that of the state having the “most significant” contacts with the situation.

122. Remember in that respect that “the needs of interstate and international systems” constitute the first of the “relevant factors” listed by par. 6 of the Restatement as “Choice of Law Principles.” Restatement 2d, cit., p. 10 and foll.

123. Supra, p. 7.

124. Supra, p. 10.

125. Supra, notes 7, 16, 21 and 32.

126. In effect, as the following quotation quite clearly evidences, Currie's doctrines do not seem basically addressed to only interstate questions but to all sorts of choice of law problems in an universal context: “The central problem of conflict of laws may be defined, then, as that of determining the appropriate rule of decision when the interests of two or more states are in conflict … The problem would not exist if this were one world, with an all-powerful central government It would not exist … if the independent sovereignties in the real world had identical laws. So long, however, as we have a diversity of laws, we shall have conflicts of interests among states.” Cf. Currie, B., Notes on Methods and Objectives in the Conflict of Laws.Google Scholar In Selected Essays, cit., pp. 178–179.Google Scholar

127. Supra, p. 15.

128. Supra, p. 19.

129. Supra, p. 21.

130. In effect, in support of his affirmation of the “crucial” difference between interstate and international conflict cases, EHRENZWEIG referred as an illustration to “four tort cases which have gained international attention. All of them involved deaths or injuries caused by crashes of airplanes. In two of the cases the highest courts of New York and Pennsylvania permitted domiciliaries of the forum state to recover full damages under their own laws, although Massachusetts and Colorado, the accident states, would have severely limited recovery (Kilberg v. Northeast Airlines, Inc. 9 N.Y. 2d. 34, 172 N.E. 2d. 526 (1961); Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964) … But the decision was otherwise in two subsequent cases in which recovery was sought by American citizens against a Brazilian airline with regard to Brazilian air crashes. In both cases, federal courts in New York and the District of Columbia, contrary to the laws of all American states potentially involved, limited damages to the Brazilian maximum of – $173! (Ciprari v. Servicos Aereos Cruzeiros; Tramontana v. S.A. Empresa de Viaçao Aerea Rio Grandese. [Vide supra, pp. 23–25 ]). To be sure, these seemingly draconic rulings were facilitated in both cases by the plaintiff's extra-judicial recoveries (workmen's compensation, special act of Congress). But even in other circumstances, American courts will on several grounds be reluctant in such and other international conflicts cases simply to follow their practice in interstate cases, whether that practice favors application of their own or that of a foreign law.” Ehrenzweig, , Private Int. Law, cit., p. 21.Google Scholar

131. Supra, p. 23.

132. Supra, p. 25.

133. Under the “governmental interest” doctrine the unorthodox character of the application of the foreign law is, in these two international “true” conflicts, plainly apparent. In effect, according to Currie's teachings, the disinterested Court in Tramontana should have applied the law of the District of Columbia forum as corresponding with the substantive law of Maryland (supra, note 36). By the same token, the interested New York forum should also have applied its own law in Ciprari as the only way of ultimately resolving the unavoidable true conflict presented (ibid.).

134. In effect, according to CURRIE, in an unprovided for situation, the forum should apply its own law short of a better reason for displacing it with any other law. Cf. Married Women's Contracts: A Study in Conflicts-of-Laws Method in Selected Essays, cit., pp. 152–156.

135. Labree v. Major, 111 R.I. 657, 306 A. 2d 808 (1973); Erwin v. Thomas, – Or –, 506 P. 2d 494 (1973).

136. Supra, pp. 27–29.

137. In effect, Judge Fuld's willingness to apply New York forum's law in favour of an eventual New York plaintiff but not in favour of an Ontario one in Neumeier, might be regarded as an exercise of improper discrimination in violation of the Equal Protection clause of the Constitution, which is generally considered as applying also to international conflicts (supra, pp. 34–35). According to CURRIE's teachings, such a discriminatory practice would be also in contradiction with the Privileges and Immunities clause (Cf. Selected Essays, cit., p. 154Google Scholar). In that respect, although the communis opinio maintains that the privileges and immunities provision only applies to interstate conflicts, it should be recognized that its violation would not have in any case contributed to the maintenance of international order. See in that connection, SEDLER, Interstate Accidents and the Unprovided – For Case: Reflections on Neumeier v. Kuehner, in Symposium cit., Hofstra L. Rev., pp. 148–149.

138. Infra, p. 41.

139. Cf. Leflar, , Choice-Influence … cit., pp. 285–290Google Scholar; Conflicts Law: More on Choice-Influencing. …, cit., pp. 1586; American Conflicts Law (1968), p. 247–249.Google Scholar

140. Ibid., pp. 295–304; p. 1587 and pp. 254–259, respectively.

141. According to CAVERS, the “better law” criterion could be properly applied in purely domestic cases but not in interstate choice of law cases. (Cf. Cavers, , The Value of Principled Preferences.Google Scholar In Symposium: Conflicts of Laws Round Table, 49 Texas L. Rev. 1971, p. 215). Thus, nor should it be applied, a fortiori, in international conflicts cases.

142. Basically, both its grandeur and its misery derive from the very fact that LEFLAR's “considerations” are of a mere “descriptive” nature. But notice, together with EHRENZWEIG, the disturbing fact that “leading courts have given LEFLAR's last ‘consideration’ which states the courts' preference for the ‘better rule’ the status of a source of law.” Ehrenzweig, , Conflicts in a Nutshell, cit., p. 34.Google Scholar Moreover, the “better rule” consideration can be properly criticized on two basic grounds: (1) As the experience of Minnesota, Wisconsin and New Hampshire demonstrate – and in accordance with LEFLAR's own pre-visions (Choice-influencing, cit., pp. 298–299Google Scholar) – judicial use of the “better law” approach seems to tend irresistably toward application of forum law; (2) Eventually, the displacement of the forum law in favor of a foreign “better” rule (Cf. LEFLAR, ibid., pp. 299–300) does not seem to correspond to the proper function of American courts under the Constitution. Cf. Fuerste v. Bemis 156 N.W. 2d 831, 834 (Iowa, 1968) where, rejecting plaintiff's effort to have it apply the “better law” of Wisconsin rather than its own guest statute, the Supreme Court of Iowa said: “… It is not for us to consider which is the better law when the policy-making body of the State has spoken …”. Vide in that respect, Kay, , op. cit., p. 160–161.Google Scholar

143. Cf. 203 N.W. 2nd (1973), p. 416. See also supra, p. 31.

144. In fact, given the circumstance that all Minnesota bills had been paid, the court's reference to “minor incentives to ‘hospital shop’…” (ibid., p. 417) seem totally fictitious. Besides, the court's assertion that “the main governmental interest involved is that of ‘any justice administering state’” (ibid., p. 417) appears particularly unfitted, for – as one commentator said – “it might imply that the plaintiff would recieve less than justice in Ontario.” Cf. Case Comment: Conflicts of Laws: Minnesota Rejects the “Significant Contacts” Doctrine in Favor of the “Better Law” Test, 58 Minn. L. Rev., pp. 205–206.Google Scholar

145. In effect, as the above-mentioned commentator has accurately said, “The court's unsuccessful merger of governmental interests and better law in Milkovich obliterates governmental interests as a factor and destroys any hope of recognizing competing interests of other jurisdictions.” Ibid., p. 206.

146. Vide in that sense, note 130, supra. Professor LEFLAR has affirmed that: “Cases involving facts that cross national boundaries may be affected by considerations which are not present in interstate cases that arise wholly within the United States. Maintenance of international order and comity may be a more delicate concern, governmental interests may be more sharply distinguishable, and the contrast between competing rules of law with corollary preference for the forum's own rules as representing the “better law” may be more striking”. Leflar, , American Conflicts, cit., p. 9.Google Scholar

147. In effect, even such an enemy as Professor EHRENZWEIG to the idea of an existing “superlaw” formally recognized that the Constitution of the United States dominates both interstate and international choice of law: “International conflicts law in the United States is partly derived from national sources (Constitution …)”, Ehrenzweig, , Private Int. Law, cit., p. 27Google Scholar; “International conflicts law is potentially subject to national regulation within the … clauses of the United States Constitution …”, Ehrenzweig, , Conflicts in a Nutshell, cit., pp. 53–54.Google Scholar

148. According to REESE and ROSENBERG, “Two of the three provisions of the Constitution which are most important in conflicts of laws do not apply to international conflicts of laws: the full faith and credit clause, which is confined to sister “states”, and the privileges and immunities clauses, which are limited to citizens ‘of each state’ or of the United States.” Reese, and Rosenberg, , op. cit., pp. 764–765.Google Scholar However, other scholars maintain that the spirit – if not the letter – of the full faith and credit clause applies also in international conflicts (Cf. Cheatham, , American Theories of Conflicts of Laws: Their Role and Utility, 58 Harvard L. Rev. (1944) p. 375Google Scholar; Katzenbach, , Conflicts onan Unruly Horse, cit., p. 1132Google Scholar); and – even more straightforwardly –; EHRENZWEIG has also maintained that the privileges and immunities clause could apply to international conflicts cases. Cf. Ehrenzweig, , Private Ints. Law, cit., p. 34.Google Scholar

149. Cf. Ehrenzweig, , op. cit., pp. 36–40.Google Scholar

150. Ibid., pp. 40–42.

151. The place of International Law in American conflicts has not yet been the object of sufficient clarification. This is especially true as to the role of international norms derived from sources other than treaties (namely: “international custom” and “general principles of law recognized by civilized nations”, according to art. 38 of the Statute of the International Court of Justice).

As to customary ius gentium only EHRENZWEIG has treated the point, although not without ambiguity: “Although international custom is as such not a source of American conflicts law, that law is strongly affected by what Rabel has aptly termed ‘transnational’ rules … “To be sure, such rules, outside the law of admiralty, ‘se bornent à quelques directives de teneur le plus souvent permissive.’ (Batiffol) But readiness and striving for the adoption of such rules may be found everywhere due to ‘une renaissance de l'esprit international’ (Lerebours-Pigeonnière).” Ehrenzweig, , op. cit., p. 33.Google Scholar

Be that as it may, it seems in any case certain that David CURRIE's criticism of the Court's efforts in Lauritzen to construe the Jones' Act in accord with the Law of Nations (Cf. 345 U.S. (1953), p. 578) was not substantially warranted. Cf. Currie, D., Flags of Convenience, cit., pp. 97–98.Google ScholarVide in general Nussbaum, , The Rise and Decline of the Law of Nations' Doctrine in the Conflicts of Laws. 42 Colum. L. Rev. (1942), pp. 189–206.CrossRefGoogle Scholar

152. In that respect, the ability of the functional methods to flexibly adapt to be incidence of the constitutional limitations has produced a parallel trend towards a more flexible application of the constitutional provisions on choice of law questions: “… for a time – explains WEINTRAUB in that sense – the Supreme Court did attempt to translate rigid territorial choice-of-law dogmas into equally rigid constitutional dogmas. The Court's retreat from these attempts to impose strict constitutional limitations on choice of law has eased the way for the new ‘functional’ and ‘state-interest’ choice of law approaches …”. Weintraub, , Commentary on the Conflict of Laws, cit., p. 378.Google Scholar

153. Restatement Second cit., par. 10, Comment d. (3), p. 39. As to the general limitations on choice of law questions, par. 9 of the Restatement affirms that “A court may not apply the local law of its own state … unless such application of this law would be reasonable in the light of the relationship of the state and other states to the person, thing or occurrence involved.” Ibid., p. 31.

154. Supra, p. 29 and note 103.

155. In effect, according to CURRIE himself, “the fact that the Supreme Court now employs such a (governmental interest) analysis in the determination of conflict-of-laws questions at the constitutional level … is widely understood and accepted.” Currie, B., The Constitution and the Choice of Law, cit., in Selected Essays, p. 192Google Scholar and note 11. Vide also ibid., p. 271. In the same sense, Leflar, R.,; Constitutional Limits on Free Choice of Law, 28 Law and Contemp. Problems (1963), p. 723.CrossRefGoogle Scholar

156. This principle, which applies basically to “false problem” situations, has been formally asserted by CURRIE: “A state may deprive a party of due process of laws by applying the law of a state having no interest in the matter.” B. CURRIE, ibid., p. 198. Also, p. 271.

157. This principle, which applies basically to “true conflicts” situations, has been also formally stated by the author: “The reason why (the courts shall not choose between the competing interests of states is that it) is a political function of a high order, which ought not, in a democracy, to be committed to the judiciary; that the Court is not equipped to perform such a function, and that the Constitution specifically confers that function upon Congress.” B. CURRIE, ibid., p. 27.

158. Richards v. United States, 369 U.S. 1, 15 (1962).Google Scholar

159. Scoles, , Interstate and International Distinctions, cit., p. 1602.Google Scholar The author lists among these areas: “Foreign Relations and Treaties”, “Judgments”, “Tax Claims” and “Expropriation”.

160. In that sense, KATZENBACH has pointed out that “(c)ourts, at least in international cases (were) concerned about ‘political’ involvement where matters of public policy or public law (are) concerned”. (Katzenbach, , op. cit., p. 1090Google Scholar). Also: “internationally, restraints, where not self-imposed, are the product of diplomatic pressure …” (ibid., p. 1153).

161. Cf. Reese, and Rosenberg, , op. cit., p. 571.Google Scholar

162. Scoles, , op. cit., p. 1602.Google Scholar

163. In effect, although this particular point has not been sufficiently explained by the founders of the functional methods, the “interests” to which their writings commonly refer do not appear to be of a “political” character, but of a mere “civilian” nature.

164. Currie, B., The Constitution, cit., in Selected Essays, p. 192.Google Scholar

165. Ibid., p. 241.

166. Leflar, R., Constitutional Limits, cit., p. 725.Google Scholar

167. Ibid., p. 724.

168. Remember, in that connection, that an American scholar pointed out in a recent article that “in international conflicts our public policy has the habit of getting tangled up with our foreign policy”. Cf. Katzenbach, , op. cit., p. 1094.Google Scholar

169. CHEATHAM, Book Review, 45 Am. Bar Ass. Journal (1959), p. 1190. In the same sense, EHRENZWEIG has suggested that “similar rules of the contiguous Canadian provinces may often call for interstate rather than international conflicts' treatment in the United States.” Ehrenzweig, , Private Int. Law, cit., p. 20.Google Scholar

170. Leflar, , American Conflicts, cit., p. 9.Google Scholar

171. Supra, pp. 23–25.

172. Supra, pp. 25–27.

173. Cf. Currie, B., The Constitution, cit., in Selected Essays, p. 189 and p. 204.Google Scholar

174. Vide in that sense supra, p. 33 and note 126.

175. Supra, p. 27.

176. Supra, p. 25.

177. Supra, p. 30.

178. Supra, p. 27.

179. Supra, p. 23.

180. Supra, p. 25.

181. These difficulties are evidenced by EHRENZWEIG's ambiguous attempt at analysis. In effect, that author's interpretation of the present situations only enables him to conclude that application of an extraterritorial rule may be either “required” or “rejected” and that “American courts will … be reluctant … in international cases to follow their practice in interstate cases, whether that practice favors application of their own law or that of a foreign law”. Ehrenzweig, , Private Int. Law, cit., pp. 21–21.Google Scholar

182. Scoles, , Interstate and International, cit., p. 1623.Google Scholar