ABSTRACT
In both Europe and the United States, the rules of private international law governing property-related issues are being reexamined. In addition to the Spanish Ministry of Science and Innovation-sponsored project on European private international law and property rights, both the European Association of Private International Law and the European Group of Private International Law have undertaken projects on this topic.
In the United States, the American Law Institute (ALI) launched its Restatement of the Law Third, Conflict of Laws (Third Restatement) project in 2014, marking the ALI’s first comprehensive effort in the field of conflict of laws since the 1971. Like its predecessors, the Third Restatement project will contain a chapter on choice of law for property issues. In addition, in 2020 the Uniform Law Commission (ULC) began work on a uniform Conflict of Laws in Trusts and Estates Act (Uniform Act) for consideration by US state legislatures.
This chapter discusses the Third Restatement’s approach to choice of law for issues about property and offers some comparative observations. Although the various European regulations and projects and the Third Restatement have different premises, they have significant similarities in content, thus raising the possibility of a modest degree of convergence between EU and US approaches to these issues. In particular, by deemphasizing the distinction between personal property and real property and sharply limiting the scope of the traditional law-of-the-situs (lex rei sitae) rule, the Third Restatement’s choice-of-law rules for property issues are much closer than the First Restatement’s or Second Restatement’s rules to those found in EU private international law.
The chapter proceeds as follows. Section II provides an overview of choice of law in the United States, including the role of Restatements. Section III presents the overall approach of the 1934 First Restatement and the 1971 Second Restatement to choice of law for property issues. Section IV explains the theory and design principles animating the Third Restatement. Section V provides some concrete examples of the Third Restatement’s approach to property issues. Section VI concludes by offering some brief comparative observations.
Whytock, Christopher A, Choice Of Law For Property Issues: The Third Restatement’s Approach In Comparative Perspective (October 24, 2024), UC Irvine School of Law Research Paper No 2025-7; in Private International Law and Rights In Rem 89-112 (Maria Font i Mas ed) (Marcial Pons Ediciones Jurídicas y Sociales, 2024) (DOI: 10.37417/PILRIRUE/03).
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