THE EUROPEAN UNION AND THE SYSTEMATIC DISMANTLING OF THE COMMON LAW OF CONFLICT OF LAWS

摘要

English conflict of laws is the creation of the common law. Prior to Britain's entry into the European Union, legislation played only a limited role. The few legislative measures concerning choice of law were narrowly targeted to remedy specific problems-for example the formal validity of wills, or torts. The rules for service outside the jurisdiction were a more important exception, but their practical operation largely depended on judge-made concepts and remedies, such as forum non conveniens and antisuit injunctions. The common law also provided a complete system for the recognition of foreign judgments that operated untrammelled with regard to judgments from many countries, including some of the most important, while the relevant legislation, where applicable, did little more than provide a simpler procedure. It is not the purpose of this article to decry legislative intervention in conflict of laws; where the law has taken a wrong turn, legislation is both necessary and desirable. However, its purpose and function have traditionally been remedial: the legislature provides a statute in the same way that a doctor provides a brace or other surgical appliance to correct some defect in the body. In time, the common law grows round the legislation and absorbs it, so that judge-made law and legislation eventually become a homogeneous blend.