This Article [originally published in the Duke Journal of Comparative & International Law] highlights three proposals for addressing internationalization in the Restatement of the Law Third, Conflict of Laws. 

INTRODUCTION

Some sixteen years ago, on the occasion of one of many symposia on the possibility of a new Restatement of Conflict of Laws to replace the much derided Second Restatement, Mathias Reimann suggested that a new Restatement should focus on the requirements of what he called “the international age.” Conflict of laws is increasingly international, he pointed out. This remains true today—just recall that three of the four most recent U.S. Supreme Court decisions on personal jurisdiction concerned international conflicts. A new Restatement must account for this trend toward internationalization. Reimann formulated three very sensible wishes for drafters of a new Restatement: they should consider every rule and principle they formulate with international disputes in mind; they should work comparatively; and they should include foreign advisers among their ranks.

Now that a Third Restatement is underway, we can see that the third of Reimann’s wishes, the one for foreign advisers, remains unfulfilled. Not a single member of the Advisers Group is situated outside the United States (though some have a foreign educational background). Within the (selfselected) Members Consultative Group, only four scholars are based abroad. This stands in sharp contrast to the new Restatement (Fourth) of U.S. Foreign Relations Law, which can rely on an international advisory panel with twenty-one members from all around the world. This may make it particularly challenging to completely fulfill Reimann’s first two wishes—even though the current draft displays in some sections ample comparative and international materials.

It was with this type of concern in mind that the two of us, together with the Duke Journal of Comparative and International Law, and with The American Law Institute’s generous sponsorship, organized a conference held at Duke University School of Law in November of 2016. The articles in this issue are the outgrowth of that conference. Scholars from the United States and elsewhere were asked to address questions of internationalization in concrete areas related to the new Conflict of Laws Restatement. They were asked to be as constructive and specific as possible in order to be of the greatest help to the project. All three reporters for the new Conflict of Laws Restatement participated in the conference (though as listeners and chairs, not as speakers) and found the symposium constructive, thought-provoking, and insightful. It is our hope that this issue will likewise be helpful to the broader conflict-of-laws community.

In what follows, we address some general themes in this regard, to supplement Reimann’s proposals. We discuss the importance of international law, and of comparative law, for conflict of laws in general and the new Restatement in particular, before focusing on specific issues. In conclusion, we highlight three concrete proposals for how to address internationalization in the Restatement, each of which was presented at the conference.

Full article, including footnotes and references, available at: http://scholarship.law.duke.edu/djcil/vol27/iss3/1

Ralf Michaels & Christopher A. Whytock, Internationalizing the New Conflict of Laws Restatement, 27 Duke Journal of Comparative & International Law 349-359 (2017)

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Ralf Michaels

Duke Law School

Ralf Michaels is an expert in comparative law and conflict of laws, and a professor at Duke University School of Law. His current research focuses mainly on three issues: the role of domestic courts in globalization, the role of conflict of laws as a theory of global legal fragmentation, and the status and relevance of law beyond the state. He serves as an Adviser on the Conflict of Laws and U.S. Foreign Relations Law Projects. 

Christopher A. Whytock

Associate Reporter, Conflict of Laws

Christopher Whytock is Professor of Law and Political Science at the University of California, Irvine, and a faculty affiliate and member of the advisory board of the UCI Center in Law, Society and Culture. His research focuses on transnational litigation, conflict of laws, international law, and the role of domestic law and domestic courts in global governance.

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