Toward Harmonization and Certainty in Choice-of-Law Rules for International Contracts: Should the U.S. Adopt the Equivalent of Rome I? (forthcoming in Wisconsin Int'l L. J.)

Charles R. Calleros, Arizona State University

Abstract

Abstract

Most courts and commentators have rejected the relatively simple and mechanical choice-of-law rules of the first Restatement of Conflict of Laws. Those rules sometimes resulted in the application of the law of a state or nation with no interest in the dispute and with little relationship to the issues, the parties, or the parties’ expectations about applicable law. The effort to find suitable replacement rules, however, has resulted in a patchwork of approaches within the United States, many of them typified by the flexible and multi-faceted approach of the second Restatement of Conflict of Laws or the homeward-looking test of the Uniform Commercial Code.

The needs of parties to commercial contracts would be better served with simple, certain, predictable, and globally uniform choice-of-law rules. The choice-of-law rules set forth in the European Community’s Rome I Regulation offer these benefits in international contract disputes, along with special protections for consumers and employees and with adequate “escape hatches” to vindicate public policies of overriding importance in the international sense. Other countries, including the United States, should consider adopting the equivalent of Rome I for international contracts to achieve maximum certainty, predictability, and uniformity in choice of law in the absence of contractual choice.