1. The magic evolution of conflict of laws
Tamas Dezso Ziegler
The magic evolution of conflict of laws
(Internationalisation, interdependence and the role of tolerance)

2. Changes in conflict of laws
Switzerland: from famine to success
Public choices set the direction of future (Brexit, progression, nationalism and tolerance, etc.)
Dissertation + conference: the role of nationality
Jürgen Basedow’s book – The Law of Open Societies. Brill, 2015.

3. Open societies Karl Popper: The Open Society and its Enemies. 1945.
Closed and open societies
Closed state: governed by an elite, asks for conformism, have authoritarian leaders, etc.
Open society: tolerant, fights against intolerance, democratic system

4. Closed societyies
‚…are not based upon tradititional attempt to improve social conditions…. Taboos rigidly regulate and domiate all aspects of life… The right way is always determined, though difficulties must be overcome in following it. It is determined by taboos, by magical tribal institutions which can never be objects of critical consideration. Based upon the collective tribal tradition, the institutions leave no room for personal responsibility.’ (Basedow cites Popper, p. 26.)

5. Tendencies on the world
Interdependency: states, persons and businesses are connected and depending on each other: Did Milan got closer to Germany? (Ole Lando)
Commercial relations got more intensive
Continents get ’unified’: NAFTA, South America: UNASUR, ASEAN+6, Africa: Continental Free Trade Area (CFTA)
Nationalism got weaker
Migration: more people move (however, the % of population is not necessary higher than 100 years before)
Swim against the stream: protectionism, isolationism, racism, retrograde politics

6. General observations: extreme fragmentation
The Hague Conference on Private International Law
EU:
explicit rules
 ”hidden” rules
State legislation

7. General observations: role of citizenship fades away
Kegel, 1977: „The most important connecting principle in German private international law is the principle of nationality”
1977, EGBGB (examples):
Concluding mariages: if one of the parties has German nationality: german law
Obligations:
Damages: joint citizenship exception v Rome II – joint habitual residence (also: affiliate of a German company made damage to a German citizen abroad: German law)
In certain cases: compensation for a damage could not be higher than the provisions set by German law, IF defendant was German
Contracts: may chose the country of citizenship
USA:  domicile was used instead!!

8. Habitual residence gets important
EU legislation on choice of law (e.g. Rome I): „a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence
1980 Rome Convention:  most closely connection: party’s habitual residence
Definition of habitual residence also changed: permanent centre of interests v. actual stay (important!!!!! You can move freely!!!)

9. Jurisdiction: freedom to chose the proceeding court
Arbitration:
Even against the state! (ICSID, ICC court, etc.) – the Hungarian method: banning arbitration against the state
Consumers and arbitration: problematic
Foreign courts

10. Jurisdiction: Kylie Minogue case (eDate Advertising case)
Defamation: Kylie Minogue case: internet and damages: more open approach

11. Jurisditcion: forum non conveniens
First: forum non competent
Scottish principle moves into English law in the second part of the 20th century
EU: Owusu v. Jackson
My personal opinon: is against human rights, esp. against access to justice
A result of (or a compensation for) nationalism? 

12. Applicable law: vulnerable people received protection
Consumer law provisions
Product liability: if a product makes damage to someone
Labour law

13. Applicable law Choice of law clauses are available in more situations:
for damages (see e.g. Rome II)
For family relationships
The principle of closer connection and closest connection as an exception got widespread: more freedom for judges
Country of origin principle: uncommon

14. Law applicable to contracts: the chaos in the USA
Different methods:
Classic “place of contracting”
Centre of gravity test (significant contact approach)
Better law approach
Governmental interest analysis
Law of the forum
Place of performance
Second Restatement: The law of the state/country that has the most significant relationship to the transaction and the parties

15. Recognition and enforcement of judgments
International (bilateral) agreements
Then: mutual recognition: if the pther country also accepts our judgments
Exequatur process: special process for the recognition
EU: Brussels Ibis: breaks through these rules: automatic recognition

16. Recognition and enforcement of public documents
Extremely important for legal practice: in certain countries signature specimens are necessary if you want to create a company
Certain countries did not accept the signatures because of safety reasons
Hungary: a public document (e.g. a document apprved by a notary public) can be enforced easier
Consulate or Ministries
Apostille: special procedures were needed
Recently: recognition and enforcement got widespread in the EU 

17. Conclusion
Private international law became  a tool and indicator of tolerance and opennes of a society.