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The Foundation of Choice of LawChoice and Equality$
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Sagi Peari

Print publication date: 2018

Print ISBN-13: 9780190622305

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780190622305.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 17 September 2021

The Formal Structure of Choice-of-Law Rules

The Formal Structure of Choice-of-Law Rules

Three Choice-of-Law Methodologies

Chapter:
(p.1) 1 The Formal Structure of Choice-of-Law Rules
Source:
The Foundation of Choice of Law
Author(s):

Sagi Peari

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190622305.003.0002

This chapter traces the structure of choice-of-law rules and outlines the three leading methodologies: classical connecting factors, American interest analysis, and better law. Among the three methodologies, only the better-law methodology involves a substantive evaluation of the involved laws. Yet, one can make a division between two forms of better law: as a primary rule and as a secondary or subsidiary rule. Choice-of-law thought and judicial decisions treat these forms of better law in fundamentally different ways. The better law as a primary rule is vulnerable to a set of serious objections, lacks internal coherency within its own logic, and has received limited support in scholarly writings and in the courts. The situation is different with respect to the subsidiary version of better law. Its incorporation within traditional and contemporary choice-of-law doctrines and concepts underlies its practical significance for choice-of-law process.

Keywords:   classical connecting factors, interest analysis, better law, substantive evaluation, better law as primary rule, better law as subsidiary rule, internal coherency, practical significance

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