Jurisdiction and choice of law for non-contractual obligations ... - OAS

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law for the entire area of non-contractual liability. In the United States, the federal
government negotiates treaties, and, once negotiated, the treaty is binding on the states.
However, as noted above, choice of law is currently regarded as primarily a matter of
state law. An inter-American convention harmonizing choice of law for all cases of noncontractual
liability would accordingly supersede state choice of law rules in a broad
range of cases. Given the traditional division of authority between the state and federal
governments, I think there would be very strong – probably insurmountable – political
resistance to an instrument that would displace state law so broadly in an area
traditionally governed by state law. On the other hand, if the convention were to seek to
harmonize choice of law for only a narrow subcategory of non-contractual liability,
adherence by the United States would not be out of the question. (The alternative would
be a model law harmonizing choice of law in cases of non-contractual liability, but, even
if agreement could be reached on such an instrument, it would have to be adopted by
50-plus individual states of the United States, thus making harmonization even within the
United States a quite significant undertaking.)
The experience of other global and regional organizations also cautions against
undertaking the project of seeking to harmonize choice of law in the entire field of noncontractual
liability. The Hague Conference considered undertaking such a project in the
late 1960’s and decided that the sheer number and diversity of forms of liability
encompassed in the category made such a project inadvisable. It accordingly decided to
pursue a series of narrower choice of law instruments addressing particular
subcategories of non-contractual liability. The Hague Conference’s experience with
respect to the Convention on Jurisdiction and Judgments currently being negotiated also
cautions against pursuing an instrument seeking to harmonize jurisdiction in all cases of
non-contractual liability. The negotiations are currently stalled and it appears that the
most likely outcome will be a narrower instrument addressing the validity of choice of law
agreements in contracts. As this outcome suggests, the major disagreements that led to
the failure of the proposed broader instrument related to jurisdiction in cases of noncontractual
liability.
At the regional level, the experience of the European Union is not encouraging. In
the 1970’s the EC sought to harmonize choice of law with respect to both contractual
and non-contractual liability. This proved too difficult insofar as non-contractual liability
was concerned, so the project was trimmed to include only choice of law for contractual
disputes. The result was the Rome Convention. Very recently, the idea of harmonizing